BFXK v Minister for Immigration and Border Protection - [2018] AATA 886

BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886 (16 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0429
Re:BFXK
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member C Puplick AM

Date:16 April 2018
Place:Sydney

The decision under review is set aside and is remitted under s.43(1)(c)(ii) to the Department with a direction that ministerial discretion should be exercised under s.501(1) in the Applicant’s favour.
.........................[sgd]...............................................
Senior Member C Puplick AM
CATCHWORDS
VISA CANCELLATION – mandatory cancellation – character test –criminal record – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – expectations of the Australian community – best interests of children – non-refoulement obligations – remitted for reconsideration
LEGISLATION
Administrative Tribunal Act (1975) (Cth)
Citizenship Act 2007 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Ahmed v Minister for Immigration and Border Protection [2017] AATA 1908
Applicant 4264 of 2011 v Minister of Immigration and Citizenship [2011] AATA 920
Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27
Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13
BHKM v Minister for Immigration and Border Protection [2018] AATA 3
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Do and Minister for Immigration and Border Protection [2016] AATA 390
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61; [2018] HCA 2
Fu (Migration) [2018] AATA 732
Areez Jafferi v Minister for immigration and Border Protection [2015] AATA 347 KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
KLLV v Minister for Immigration and Border Protection [2016] AATA 896
Mahu v Minister for Immigration and Border Protection [2018] AATA 161
McKendrick v Minister for Immigration and Border Protection [2018] FCA 346
Minister for Immigration and Ethnic Affairs v Baker [1997] 153 ALR 463 at 468
Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510; [2017] FCAFC 73
Mzaja v Minister for Immigration and Border Protection [2017] FCCA 448
NKWF v Minister for Immigration and Border Protection [2018] FCA 409
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
Re ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; (1998) 50 ALD 690
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
WAN v Minister for Immigration and Multicultural Affairs [2001] FCA 568
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Ethnic Affairs: Criminal Deportation Policy: Ministerial Statement, House of Representatives, Hansard, 4 May 1983
Minister for Immigration, Local Government and Ethnic Affairs: Ministerial Statement, Senate: Hansard, 8 December 1988
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998
Migration Amendment (Character and General Visa Cancellation) Bill 2014
Ministerial Direction no. 17 (16.6.1999)
Ministerial Direction no. 21 (23.8.2001)
Ministerial Direction no. 41 (3.6.2009)
Ministerial Direction no. 55 (25.7.2012)
Ministerial Direction no.65 (22.12.2014)
REASONS FOR DECISION
Senior Member C Puplick AM
16 April 2018
INTRODUCTION

As the matters before the Tribunal relate to an application for a Protection Visa, the Tribunal has made a confidentiality order restraining publication of personal details of the Applicant and members of his family and other associated persons[1]. The Tribunal hearing was in private session.
[1] Migration Act 1958 s. 501K
The Tribunal is tasked with reviewing a decision of the Respondent to refuse the Applicant a Protection Visa on the grounds that he fails the character test as set out in s. 501 (6) of the Migration Act 1958 (the Act).
The Applicant seeks a determination by the Tribunal that:
·The Applicant passes the character test, or
·In the event that the Tribunal finds that the Applicant does not pass the character test it should, after consideration of the requirements of Ministerial Direction no. 65[2], set aside the decision and remit the matter to the Department under s. 43 (1) (c) (ii) of the Administrative Tribunal Act (AAT Act) with a direction that the discretion in s. 501(1) of the Act be exercised in the Applicant’s favour.
·Further, in the event that the matter were remitted to the Department on the basis stated above, a direction should be given imposing a time limit on the Department requiring it to make a decision within a specified period of time.
[2] Ministerial Direction no. 65 – Visa Refusal and Cancellation made under s 501 of the Act
The Respondent seeks a decision affirming the reviewable decision. Otherwise the respondent agrees that in the event that the Tribunal finds that the Applicant, having failed the character test the decision should be set aside and the matter remitted in the terms proposed by the Applicant. In the event that the Tribunal finds that the Applicant does meet the character test then the reviewable decision should be set aside and appropriate directions given to the Department on that basis.
For the reasons stated below, it is the finding of the Tribunal that:
a.The Applicant does not meet the character test;
b.Nevertheless the Tribunal is of the opinion that ministerial discretion should be exercised in favour of the Applicant
The Tribunal makes the following orders:
a. Under s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act the reviewable decision is set aside, and
b. The matter is remitted to the Department with a direction that ministerial discretion should be exercised in the Applicant’s favour.
The Tribunal declines to make any directions in relation to the timing of future consideration of the application.
Background to Proceedings
The Applicant first arrived in Australia in 1997. He arrived on a temporary visa which expired on 30 September 1997. Before the temporary visa expired, the Applicant applied for a protection visa. This application led to the grant of a bridging visa in February 1998.
The Protection Visa application was refused in October 1997 and the Applicant sought review by the Refugee Review Tribunal (RRT). The RRT affirmed the decision under review in September 1999.
Since the RRT decision the Applicant has applied for numerous visas and sought ministerial intervention in relation to others. In all there have been in excess of ten sets of proceedings of various types initiated in regards to these applications between 1997 and 2014.[3]
[3] G Documents at 98
The Applicant was on three separate occasions an unlawful non-citizen due to not holding a current visa. These periods were over three months in 1997 and 1998; 13 days in October-November 1999 and 2 months in 2003. In 2003 after detection by the department’s compliance officers, the Applicant was taken into immigration detention and remained there for a period of some 14 months until he was granted a further bridging visa.[4]
4. Respondent Statement of Facts, Issues and Contentions at para 3
In April 2014 the Applicant applied for a Protection Visa (Class XA). This application was refused by the Minister’s delegate on the grounds the Applicant was not a person Australia owed protection obligations to.
The Applicant sought a review of the decision by the Migration and Refugee Division of this Tribunal. On 31 August 2016 the Tribunal made a determination that the decision should be remitted for reconsideration due to the “substantial grounds for believing” the Applicant would suffer harm if removed from Australia.
After the decision was remitted for reconsideration, the Respondent, on 10 July 2017, advised the Applicant his application was being considered under s 501(1) of the Act and invited his response. The Applicant responded with submissions on 7 and 31 August 2017.[5]
[5] G Documents at 136-160
On 15 November the Minister’s delegate made a determination to refuse the visa application on the basis the Applicant was not a person of good character in accordance with s 501 of the Act.
The Applicant was notified of the decision on 22 January 2018. On 26 January 2018 the Applicant lodged an application with this Tribunal for a review of the refusal decision.
At the request of the Applicant’s counsel a psychiatric examination of the Applicant was arranged and conducted on 5 April 2018. Submissions incorporating the psychologist report were provided to both the Tribunal and the Respondent on Friday 7 April 2018. In order to meet the requirements of the Act that any material to be presented to the Tribunal must be disclosed to the Minister at least two business days in advance[6], this evidence was not before the Tribunal until Wednesday 11 April 2018.
[6] Migration Act s. 500 (6H) (6J)
Information before the Tribunal
The Tribunal had before it a set of documents (the “G” Documents) containing all relevant background material together with a Statement of Facts, Issues and Contentions from both parties. In addition there is a 60 paragraph statement supplied by the Applicant and dated 9 March 2018. The importance of the Applicant’s statement will become apparent throughout my consideration of this matter,
In evidence is a copy of a traffic Offenders Intervention Program Certificate; a statement by the Applicant’s fiancée dated 21 March 2018, a statement by the Applicant’s friend (hereafter the Friend) dated 21 March 2018 and a copy of a NSW Police Report detailing the Applicant’s criminal record and bail history dated 24 March 2018. Personal details
The Applicant is an Indian national. He has been in Australia for over 20 years. In June 2000 he married an Australian citizen, with whom he has had two children. The Elder Child was born in December 2000 and the Younger Child in November 2001. Both children are Australian citizens. Both children are currently at school.
It is of relevance to note that the Applicant professes himself to be a member of the Islamic community and his former wife practices the Hindu religion.
The Applicant and his wife divorced in 2009. The ex-wife was granted primary custody of the children. Family Court orders grant the Applicant access to the children on weekends and during school holidays.
In or about September/October 2017 the Applicant met an Australian lady with whom he formed a relationship. The two of them are now engaged and indicated they plan to marry. The lady is an Australian citizen and has a young child.
The Applicant’s Criminal Record
The offences committed by the Applicant fall into two categories: those described as domestic violence offences and those described as traffic offences. The details of the former are quite clear from the record[7] and evidence, those of the latter far less so.
[7] Tribunal Document A5 – [Applicant’s Name] – New South Wales Police Force: Criminal History – Bail Report
Domestic Violence
In December 2002 the Applicant was convicted of “common assault” in an event where he slapped his (then) wife in the face during the course of a domestic argument. The Police were called by a third person. The Applicant was placed on a Good Behaviour Bond for a period of 12 months.
In February 2007 the Applicant was convicted of two violent offences.[8] The first offence “assault occasioning actual bodily harm” for which he was fined $1,000. The offence was committed in early July 2006. The Applicant was further convicted of “contravene apprehended domestic violence order” and fined a further $250; the offence was committed later in July 2006.[9] In this instance the victim of the assault was a female friend of a friend of his whom, the Applicant alleges, made unwanted and unsolicited advances to him. He asserts that the “assault” was his pushing her away when she attempted to kiss him and the breach of the AVO occurred when he telephoned her to ask why she had reported matters to the Police.[10]
[8] Tribunal document A5, NSW Criminal History dated 24 March 2018
[9] Tribunal document A5, NSW Criminal History dated 24 March 2018
[10] Tribunal document A1, statement of the Applicant dated 9 March 2018 at [39]
Traffic Offences
The Applicant’s criminal history is confusing in a number of respects. There is at least one instance of a sentence having had to be revisited for failure to apply the correct penalty[11] and another where orders were varied after an apparently successful appeal against the severity of a sentence. However what is agreed between the parties is as follows[12]:
·Drive while suspended (December 2007)
·Drive with mid-range prescribed content of alcohol (PCA) (December 2007)
·Drive with high-range PCA (October 2014)
·Drive with high-range PCA (November 2015)
·Drive while disqualified (March 2017)
[11] Under s.43 Crimes (Sentencing Procedure Act) 1999 (NSW)
[12] G Documents at 27. Respondent Statement of Facts, Issues and Contentions at 5.1-5.5
It appears (there is no documentary evidence but it is agreed between the parties) that the offence of driving while disqualified may have resulted from the Applicant’s licence being suspended for failure to pay fines/money to the State Debt Recovery Office and that he may genuinely not have been aware of this suspension.
These offences resulted in numerous fines; periods of disqualification; the imposition of Intensive Corrections Orders and attendance at programmes related to driver education and alcohol management issues. Each of these programmes was completed successfully and at least one with a positive reference from the programme manager. Approximately 150 hours of community service was completed in accordance with directions working at Rookwood Cemetery and at a Salvation Army store.
The Applicant has not been convicted of any offences involving acts of violence since 2006 nor of any more recent driving offences (although his licence is currently suspended until 2021).
In this respect I note the comment by the Tribunal in Jafferi to the effect that:
“The lapse of time between an application and the applicant’s[13] past criminal record is a relevant, but not necessarily decisive, consideration in assessment of their character…. Past criminal conviction is not, and in the absence of any statutory provision, cannot be regarded as, an automatic bar to the establishment of a person’s contemporary “good character”.”
[13] Areez Jafferi v Minister for immigration and Border Protection [2015] AATA 347 at 44
Similarly in Baker Deputy President B J McMahon of this Tribunal stated:
“To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of 12 months or more, no matter when that conviction took place is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions.”[14]
[14] Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13 at 43
On appeal this extract of DP McMahon’s decision was quoted by the Full Federal Court and approved with their Honours stating, after reproducing the paragraph in full:
“We think the learned Deputy President’s comment is plainly justified.”[15]
[15] Minister for Immigration and Ethnic Affairs v Baker [1997] 153 ALR 463 at 468 per Burchett, Branson and Tamberlin JJ
The Police report indicated that a charge is pending in relation to “supply prohibited drug – small quantity.”[16] It would be unsafe to draw any conclusions in relation to this matter which the Applicant denied in evidence. The Respondent, rightly in my view, drew attention to the omission of the pending charge from material otherwise put before the Tribunal by the Applicant.
[16] Tribunal document A5, NSW Criminal History dated 24 March 2018 at p. 7
The Evidence of Witnesses
The Applicant was called to give evidence and was extensively cross-examined by the Respondent’s representative. The Tribunal also directed a number of questions to the Applicant.
At the outset the Applicant indicated the name which he used in his application to both the Department and this Tribunal was not his real name. He claimed to have another name and that he had originally travelled to Australia on a passport which was itself a genuine document but issued under a name that was false. He gave an explanation for this involving interventions in the process by third parties who had advised him to undertake this course of action. In support of the validity of his “original” name he cited the fact that both of his children bore his familial name as their middle name. However he stated that he was known in Australia by his “adopted” name and that all his dealings with Australian authorities, including the police had been under that name. I note that in the Protection Visa Decision Record, the Minister’s delegate rejected the Applicant’s claim to have had an original name the reason being that the Applicant had provided details of the names of his parents and siblings which showed the use of the so-called adopted name as being the familial name of all of them.[17] I am not sure what to make of this conflicting evidence other than to say that it raises a series of questions for me about the Applicant’s general level of credibility and his penchant for transferring responsibility for his own actions onto third parties.
[17] G-documents, G9 at pp. 54,55
The Applicant gave evidence about his original arrival in Australia, claiming that he came here to avoid persecution in India. He gave details of his marriage; the birth of his two children, his subsequent divorce and the arrangements which he has to maintain contact with his children. In particular he was pressed about the extent to which he could make any comments about his children’s relationship with their mother. Apart from saying that he did not discuss this matter with his children, he indicated that he heard no concerns from them about their level of happiness or difficulty living with her. He indicated that he provides limited (unspecified) financial support for his children in terms of clothing and occasional gifts of electronic equipment.
The Applicant noted that as a result of his having married a Hindu lady he has become estranged from his family in India and that similarly there were issues with his ex-wife’s family accepting the nature of their relationship.
He gave details of his new relationship with a lady who is now his fiancée. (For privacy reasons I shall refer to her hereafter as “the Applicant’s fiancée”.)
He indicated that since arriving in Australia he had consistently been employed, paid taxes and never been in receipt of any welfare payments.
When pressed about his criminal convictions, the Applicant gave answers which were, on occasion, evasive or in fact misleading. He frequently indicated that he did not remember things, despite their being evident in his recent Statement to the Tribunal. On several occasions he questioned the accuracy of the Police report before the Tribunal. In relation to most of his driving offences he asserted that either he was unaware of his level of alcohol consumption or else he had felt pressured into driving in order to “assist” other people.
In relation to the domestic violence issues he again was evasive. He denied he had committed the offence for which he was convicted. He claimed in oral evidence that “I have never hit a woman in my whole life.”

He detailed the various driving and alcohol education/remediation programmes which he had completed.
He detailed the nature of his relationship with his children. In particular the Applicant emphasised his closeness to his Younger Child and his feeling that he would be devastated if separated from them.
On several occasions he said he had changed or reformed; he had learned his lessons; he had gained a great deal from some of the programmes; that he was in a better personal position with new relationships and that he could be relied upon not to offend again.
I found it hard to accept some of the Applicant’s evidence in terms of its correlation with the documentary evidence before the Tribunal relating to his offending behaviour.
The Applicant’s fiancée provided both a written statement to the Tribunal and gave sworn evidence. In essence she confirmed that she and the Applicant were in a relationship for approximately 7 to 8 months since first meeting while working at the Salvation Army store. I accept what she had to say about the nature of their relationship, their engagement and their plans to marry. There were some minor discrepancies in her testimony about details of her visits (especially the first visit) to see the Applicant after he had been detailed at Villawood on 21 January. I do not place any weight on these as they were minor discrepancies and could simply have been differences of memory about specific dates.
She testified that she found the Applicant to be a gentle person and not prone to violence as far as she was aware. She remarked that he treated her kindly and was “the softest person I’ve ever seen in my life”. She indicated that approximately once a week she “stayed over” with the Applicant at his home but otherwise lived with her parents and young daughter at Yagoona. She also detailed being involved in a car accident in 2013 in which she had suffered a cardiac arrest and oxygen deprivation leaving her with occasional memory problems and some psychological issues. She is not currently employed but does some “contract” work of an administrative nature. Materially her evidence went to two important matters. First, while she said she saw the Applicant drink quite often and she was aware that he had been convicted of drink-driving offences, when asked about his other convictions she replied that she was aware only that he “had been accused of hitting his wife”. She had no idea whether he had or not. She otherwise had little or no knowledge of previous events in his life.
Secondly she reported she had spent a reasonable amount of time in the company of the Applicant when his Younger Child was present. She reported the Applicant and this Child appeared to have a close bond and enjoyed being in each other’s company. However it is of note that she reported never having met the Applicant’s Elder Child and as such could make no comment about the relationship with that Child.
The Applicant’s close friend (the Friend) gave evidence. The Friend is a taxi driver and has known the Applicant for approximately eight years and has been a very close friend of his for 4 or 5 years. The Friend gave evidence of spending a reasonable amount of time with the Applicant, especially on Sundays and Mondays when the Friend does not usually work.
The Friend and the Applicant enjoy a few social drinks together but gave evidence of never seeing the Applicant drink to excess. The Friend is aware that the Applicant used to have something of a “drinking problem” but regards him as being much better placed now with regards to alcohol consumption. The Friend believes the Applicant has changed over the last year or so but characterises this as “I feel that he has not changed from the man I knew initially into a bad person at all”.[18] The Friend does not believe the Applicant is a violent person.
[18] Tribunal Document A4, the Friend statement at p. 2
From time to time the Applicant does odd jobs around the house for the Friend on what was described as “mate’s rates.”
Materially, the Friend confirmed the close nature of the relationship between the Applicant and his fiancée and recounted his role in purchasing her engagement ring.
The Friend attested to knowing about the Applicant’s drink-driving offences. When asked what is thought about them given the Friend’s job as a taxi driver and so presumably particularly concerned about issues of road safety, the response in effect made excuses for the Applicant relating his offences to “errors” that are made because “human beings make mistakes.” On the other hand, when cross-examined the Friend admitted knowing nothing of any other offences or convictions on the part of the Applicant despite their eight years of association and four to five years of closer friendship.
The Friend attested to the closeness of the Applicant and his Younger Child.
As with the Applicant’s fiancée, the Friend, despite the many years of association with the Applicant has never met the Elder Child.
I found both the Applicant’s fiancée and the Friend to be credible witnesses who gave straightforward evidence and were of assistance to the Tribunal. The credibility of the Applicant’s fiancée was conceded by the Respondent in their final submissions.
The Applicant supplied seven written statements by way of character references which I have considered[19]. They are generally formulaic in nature, often essentially just repetitions of the same words and they add little or nothing to the general appreciation of key issues before the Tribunal. However I accept them as genuine and well-intended.
[19] G Documents at pp. 148-154
The Events of 21 – 22 January 2018
Under the terms of the Ministerial Direction I must consider the best interests of the children. The events which took place on Sunday 21 January and Monday 22 January 2018 are of some consequence when considering the best interests of the children. As I understand the events from the evidence before the Tribunal and with the assistance of the Applicant’s counsel in open discussions during the hearing, the events are as follows:
·At approximately 0930 hours on Sunday 21 January 2018 the Police arrived at the Applicant’s home in Punchbowl to serve him with a Court Attendance Notice for a charge pending to be heard on 9 April 2018
·At the time his Younger Child was asleep in the bedroom of the house. The Younger Child had been staying with the Applicant father since around early to mid-December
·The Applicant made a call to his fiancée who came to the Punchbowl residence
·The Friend (referred to above) also arrived at the Punchbowl residence after having delivered a passenger to the Airport
·The Applicant was taken by the Police to Campsie Police Station and subsequently (presumably after a check of his immigration status) transported to the Villawood Detention Centre around 1530 hours
·Prior to the Applicant’s departure his Younger Child was not awoken and remained asleep in the bedroom
·Subsequent to the Applicant’s removal his fiancée woke the Younger Child. She helped gather some of the child’s personal effects together and she drove the child to the home of the Friend where he remained overnight on 21 January. She informed the Younger Child the Applicant had “gone to the Campsie Police Station” and apparently provided no further details.
·At some time on Monday 22 January the Friend took the Younger Child back to the child’s mother’s home (where the child normally resides) in Gosford
·The Friend dropped the Younger Child at the front gate of the family home and witnessed the child enter. The Friend did not see or have any contact with the child’s mother
·The Friend advised the Younger Child not to provide any details about the whereabouts of the Applicant to the child’s mother or sibling.
The Character Test
The principal reasons given by the Minister’s delegate for the rejection of the Applicant’s visa application was that the Applicant had failed the character test set out in section 501(6) of the Act. Section 501 is discussed in more detail below.
The Migration Act lists a series of specific matters related to criminal conduct which must be considered. In the event that none of the exclusionary grounds under s. 501(6) are established then the Act provides that
“Otherwise, the person passes the character test.”
Section (6)(1) of the Act refers to situations where the person has a “substantial” criminal record.[20] This section is not relied upon by the Respondent and it is agreed that whatever the nature of the Applicant’s criminal record, it would not be appropriate to characterise it as “substantial.”
[20] Defined in subsection (7) of the Act
Thus, one of the issues for the Tribunal is if Applicant was to remain in Australia whether he would engage in criminal conduct.
However, this in turn requires the Tribunal to turn its mind to the Applicant’s character more generally and the extent to which it can safely accept his assurances of future conduct.
The Applicant has admitted to having a number of convictions but puts to the Tribunal that
“the punishment that I have received have taught me many lessons. The traffic programs I attended helped me understand the risk of breaking the road rules. I love Australia and know that I will not reoffend if I am allowed back into the Australian community.”[21]
[21] Tribunal document A1, Applicant’s statement at [57]
In evidence the Friend states the Applicant has, “completely changed his ways of living in order to be trouble free with the law and to live a better life”.[22]
[22] Tribunal document A4, the Friend statement dated 21 March 2018
The Applicant’s Statement of Issues, Facts and Contentions asserts, inter alia that:
·There is no real risk that he would engage in future criminal conduct
·That to fail the character test there needs to be “more than a minimal or remote chance” that the Applicant would reoffend
·The evidence of his past conduct is not sufficient to establish a risk of reoffending.[23]
[23] Applicant Statement of Facts, Issues and Contentions at [35]-[37].
The question before me is whether or not I am able to accept the Applicant’s assurances that he is a person who has learned his lessons, changed his ways and is committed to living a life free from further offending?
On the other hand, are there reasons for believing that the Applicant is not a person whose word should be taken at face value?
The outcome of that assessment must necessarily inform my determination of whether I can take the Applicant’s word that he will not offend again.
Because I cannot do so I feel obliged to state my reasons in some detail.
a.When asked why he originally came to Australia, the Applicant replied, in effect, that it was to avoid persecution and a threat to his life were he to remain in/return to India. Nevertheless in his Statement he tells the Tribunal that: “I arrived in Australia on 17 September 1997 on a temporary sports visa. It was for 10-15 days so I could fight in karate competition at the Rooty Hill RSL.”[24] (He applied for a protection visa subsequently). Under questioning he admitted that this was the basis upon which he had applied for and been granted a visa – to compete in a sports event. If his real intention was to seek refuge from persecution, his visa application in India was deliberately misleading. In any event he attended the karate competition – but he did not fight – he was a coach.
[24] Tribunal document A1, Applicant Statement at [6]
b.On numerous occasions the Applicant made representations to the Department in support of his visa or refugee applications that
i.“I left India due to the fear of death at the hands of the Indian government” (G Documents at p. 45: Application for Protection Visa dated 25 September 1997))
ii.“I will be killed by the Police, if I return to India.” (G Documents at p. 46: as above)
iii.“The Hindu government will kill me through its sponsored groups.” (G Documents at p. 47: as above)
iv.“I left India due to fear of death at the hands of Hindu and the police” (G Documents at p. 84: Application for Protection Visa dated 20 May 2014)
v.“I will be killed by Hindu and police they harm me very badly.” (G Documents at p. 85: as above)
vi.“I will be killed because I am a devout Muslim and a true believer in Islamic faith the government suspects me of working in association with the Muslim (sic)” (G Documents at p. 86: as above)
vii.“As I am a Muslim I fear that I would be killed if I were made to return to India” (G Documents at 146: Personal Circumstances Form dated 07 August 2017)[25]
[25] The Applicant pointed out to the Tribunal that this document had been completed by another person on his behalf, and the handwriting attests to that. However it is signed by the Applicant in his own handwriting and he admitted under questioning by the Tribunal that he had read the documents before signing it and the statements therein were true.
c.Nevertheless in his Statement to the Tribunal of 9 March 2018[26] he writes clearly:
[26] Which he says “My lawyers helped me type this statement because I don’t write English very well and can’t use a computer” [at para 60] but also freely admitted to the Tribunal was true in all respects.
“In about 2007, I told the Australian Government that I would go back to India because I was tired of all the visa problems. But they couldn’t get the travel documents from the Indian consulate. That’s when I got a departure ground visa for 2 years.”[27]
[27] Tribunal document A1, Applicant Statement at [10]
d.    When pressed by the Tribunal on this admission the Applicant agreed that this statement was true – that he was ready to go back to India and that he would have done so had his travel documents been forthcoming from the Consulate.
e.    Counsel for the Applicant, in final submissions addressed this inconsistency by suggesting that at the time (2007) the Applicant was going through a process of divorce (although the couple were not divorced until 2009), was having financial difficulties and was depressed at his continuing failure to secure a visa.
f.   However I am far more inclined to believe that the Applicant was not entirely frank and forthcoming about his situation in India prior to his arrival in Australia.
g.    On several occasions the Applicant made a point of stressing his adherence to the Islamic faith:
o“I am a devout Muslim and a true believer in Islam.” (G Documents at p. 47)
o“I am a devout Muslim and true believer in Islamic faith” (G Documents at p. 86)
o“I am a Muslim and fear that I would be killed if I returned to India.” (G Documents at p. 146)
h.    The Tribunal pressed the Applicant to state what the Islamic faith has to say about the consumption of alcohol. He admitted that it was forbidden. When asked if in fact he was a true believer in the Islamic faith his response was “no”. This again weakens his claims to credibility.
As to his awareness and appreciation of the gravity of the domestic violence offences of which he has been convicted, I make further observations:
i.   On several occasions under cross-examination by counsel for the Respondent the Applicant either denied, or insisted that he could not remember whether or not he slapped his wife in the domestic violence incident of December 2002. Indeed on this matter he was both vague and evasive.
j.   Nevertheless in his Statement the Applicant admits that “I slapped her on the face.”[28]
[28] Tribunal document A1, Applicant Statement at [38]
k.     At one stage in his evidence the Applicant actually stated: “I never hit a women in my whole life”. He must have known this was untrue.
l.   In relation to this matter, in his Personal Circumstances Form (dated 7 August 2017) he states:
“2002 and 2007 offences: These were domestic violence offences. For the purposes of paragraph 11.1.1 of the Minister’s direction no. 65 even though the offences related to violence, they were confined to my domestic partner and not a ‘vulnerable member of the community” as that term is defined in the Direction.”[29]
m.   This statement is not true. The 2007 incident related to the girlfriend of a friend, not a “domestic partner”. Moreover the idea that if an act of violence is “confined to my domestic partner” is somehow supposed to mitigate the gravity of the offense, such a suggestion is unacceptable and is itself offensive and unacceptable.
n.    In response to questions put by the Respondent’s counsel to the Applicant he:
(i)Denied that he had been an unlawful non-citizen on more than one occasion (he admitted to one period leading to his 2003 detention)
(ii)Denied evidence in the Police Report that he had ever attended proceedings at the Downing Center Local Court or that he had lodged an appeal against a sentence[30] and insisted that a bond imposed upon him was for a period of time less than that shown in the documentary record
[29] G Documents at p. 143
[30] See para [27] above. Criminal History Record (exhibit A5) at page 4
The Risk of Engaging in Criminal Conduct
For a finding that the Applicant does not meet the character test, I must find that he presently poses a risk of engaging in criminal conduct.
Specifically this means there is a likelihood that he will either engage in further acts of domestic violence or that he will reoffend by committing further traffic offences.
The Meaning of “risk”
The character test provisions of the Migration Act were introduced in 1999 by passage of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998. In that legislation, the issue of the risk of engaging in criminal conduct was set out in section 501(6)(d)(i) as follows:
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia
Among a number of changes to the character test provisions, the word “substantial” in s 501(6)(d) was removed by passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014.
The Minister, in his Second Reading Speech explained the intent of these new provisions:
“Similarly, the broadened grounds for not passing the character test …. and the introduction of a lower threshold for cancellation of temporary visas will provide the government with the necessary tools to ensure that such people are subject to visa cancellation or refusal consideration under the appropriate provisions of the act. [The Bill] will introduce lower thresholds for cancelling temporary visas, reflective of lower tolerance for behavioural concerns in the temporary visa context….”[31]
[31] Hon Scott Morrison MP, Minister for Immigration and Border Protection, Hansard, House of Representatives, 24 September 2014 at p. 10326
The Explanatory Memorandum states:
(44) This item omits the word “significant” from paragraph 501(6)(d) of Part 9 of the Migration Act.
(46) The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to significant risk.” [32]
[32] Explanatory memorandum, Migration Amendment (Character and general Visa Cancellation) Bill 2014
The relevance of this recitation of legislative history is that it makes clear that the Parliament intended decision-makers to take into account a graduated assessment in terms of risk.
This principle has been enunciated clearly in a number of judicial rulings.

In McKendrick v Minister for Immigration and Border Protection,[33] Logan J citing the recent ruling of the High Court in Falzon[34] made it clear that “the risk of reoffending was a mandatory relevant consideration” in decisions made under s 501(2) of the Act. Further in his judgement, Logan J stated:
“the Minister’s reasons, having regard to an earlier pattern of offending conduct, disclosed not just a logical and rational foundation for his assessment of risk, but in the public law sense, a reasonable foundation for that assessment.”[35]
[33] [2018] FCA 346 at [24]
[34] Falzon v Minister for Immigration and Border Protection [2018] HCA 2 (7 February 2018)
[35] McKendrick v Minister for Immigration and Border Protection [2018] FCA 346 at [27]
In Sabharwal there was considerable discussion about the way in which the Minister had assessed the “risk”’ of the applicant reoffending by linking it to consideration of the applicant’s past conduct especially in relation to a further link between that offending and the consumption of alcohol. Kerr J in Sabharwal v Minister For Immigration and Border Protection stated[36]
“That “limb” of the character test arguably involved some subjective element — it required the Minister to be satisfied of the likelihood that a person would engage in criminal conduct.
By contrast, s 501(6)(d)(i) now provides an objective test. The statutory criterion required for the current character test to be engaged is that there is “a risk” that, if the person is allowed to enter or remain in Australia the person would engage in criminal conduct in Australia. The application of that criterion requires an evaluative judgement to be made – but it would be inapt to describe that as a subjective test.”[37]
[36] Sabharwal v Minister For Immigration and Border Protection [2018] FCA 10
[37] Ibid at [43]-[44]
The impact of the lowering of the threshold by the 2014 amendments was further elucidated by Senior Member Fice in KLLV v Minister for Immigration and Border Protection stating in relation to s 501(6)(d)(i) that:
“The degree of risk is not qualified as it was previously in that subsection, referring to a significant risk. In other words, as long as the risk is real and not fanciful or remote, then the subsection is engaged.”[38]
[38] [2016] AATA 896 at [51]
The assessment of risk must take into account all matters before the Tribunal. In Fu (Migration) this Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:
“As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.”[39]
[39] Fu (Migration) [2018] AATA 732 (3 April 2018) per Member Jan Redfern at [30]
Psychological Assessment
The Tribunal adjourned proceedings for a few days in order to accommodate a request on behalf of the Applicant for the preparation and presentation of a psychological assessment of the Applicant.[40]
[40] The adjournment was necessary in order to meet the requirement for two days notification of information replied upon by the Applicant to be provided to the Minister under s 500 (H) and (J)
This assessment was undertaken by Ms Emily Scanlan, a registered psychologist, in two sessions (of 120 minutes each) on Thursday 5 April. Ms Scanlan’s report was submitted on 6 April.[41]
[41] Tribunal Document A7, report of Emily Scanlan dated 5 April 2018
The report focusses on an assessment of the Applicant’s general state of mental health and makes specific reference to his problems associated with alcohol consumption and the resultant drink-driving offences.
The matters which I take from the report are as follows:
·The Applicant has a genuine concern about being separated from his children (in particular the Younger Child) and about being deported to India. He notes that this prospect of deportation to India would cause such “shock” for his children and his ex-wife that it is on that basis that he is concealing from them his present whereabouts and situation
·It is “unclear” to the psychologist as to whether or not the Applicant’s drinking had reached a “point of addiction” at any relevant time
·The Applicant is depressed because of his current situation, his detention in Villawood, the prospect of not seeing his children and his fear that he is “slowly losing everything”
·The Applicant “has good insight into his offences and the possibility that he could have harmed the community by drinking under the influence of alcohol.”
While I appreciate that the Applicant has sought to change his ways in relation to alcohol consumption, I am not sufficiently persuaded that should the circumstances and environments arise again, akin to those in the past,that he would not be at risk of reoffending.
The report in question makes no assessment of the degree of insight which the Applicant has in relation to the incidents of domestic violence or the likelihood of their repetition in the future.
The instructions to the psychologist from the Applicant’s solicitors[42] clearly set out the Applicant’s offending history in full, including the domestic violence incidents, so this matter was in the knowledge of Ms Scanlan at the time of her assessment. I have no indication of whether the incidents were raised with the Applicant by Ms Scanlan during the four hours of interview.
[42] Tribunal Document A8 being instructions from the Applicant’s solicitors (Legal and Company) addressed to Ms Emily Scalan dated 4 April 2018
Although the Instructions to Ms Scanlan specifically refer to the question of the Applicant “engaging in further criminal or other serious conduct”, I do not believe that her report addresses this matter of domestic violence with the degree of specificity required for me to come to the conclusion that such behaviour would not be repeated.
This leads me to the following conclusions:
(a)The Applicant has a record of being either evasive or economical with the truth about a number of matters dating back to his first arrival in Australia right up until and including his presentation before the Tribunal
(b)The applicant still does not accept full responsibility for the acts of domestic violence nor appreciate the gravity of them or show a real understanding of how they are regarded in the Australian community
(c)Although the Applicant has, by all accounts, modified his drinking behaviour, he still drinks on a regular basis. Although his fiancée does not drink, and thus is in a position to be his regular “designated driver”, he enjoys drinking socially with the Friend and does so regularly. At this stage, and for some time now, the principal reason that the Applicant has not encountered any further issues of drink-driving is because his licence has been suspended
I do accept the points made by the Applicant’s counsel that much has changed in the Applicant’s life; he has sought to address his drinking problems; he is in a new relationship with his fiancée; he has completed his various community service obligations and re-education programmes and has a less stressful job than was previously the case.
However, I am not, at this stage, persuaded that he would not at some stage in the future commit any drink-driving offences (at whatever range). Counsel for the Applicant pointed out that his previous drink-driving offences involved no victims. That is true. It may also have been more a matter of good luck or fortune than anything. Drink-driving is a threat to the community. It puts the lives of people (including the driver) at risk. It is, in my view a serious offence especially when repeated[43].
[43] Bowdler v Minister for Immigration and Border Protection [2018] AATA 347 at [53]-[56]
Equally, I am not persuaded that the Applicant is fully seized of the gravity of committing acts of physical violence against women or vulnerable people. His continued denial that he has never hit a woman or that if he had it was only “confined to my domestic partner” do not speak well on his behalf.
I think that in both instances, there is a risk – albeit I am prepared to concede that it is at a low, but not miniscule level - that the Applicant may engage in acts of domestic violence or drink-driving in the future.
Finally, I do not think that he has yet accepted the level of personal responsibility and truthfulness which would be necessary for me to accept that he fully understands this predicament or that I can take his word that he will not re-offend.
I am thus not able to conclude that he meets the character test set out in the Act.
Consequences of such a finding
Decisions under s 501 of the Act involve a two-step process. The first is to establish whether the Applicant meets the character test. I have made a finding that he does not.
The second is to determine whether there should be an exercise of the discretionary power to either refuse to grant or to cancel a visa.
In making such a determination I am required to have regard to the Ministerial Direction made under s 499 of the Migration Act. In this case it is Ministerial Direction no. 65 made on 22 December 2014.
The direction sets out a series of “primary” and “other” considerations.
The primary considerations are[44]:
a.Protection of the Australian community from criminal or other serious conduct;
b.The best interests of minor children in Australia; and
c.Expectations of the Australian Community
[44] Ministerial Direction no. 65 at clause 9
Protection of the Australian Community
In respect to this criterion the Direction indicates a policy position of the government as being committed to the protection of the community and the expectation that non-citizens will lead law-abiding lives recognising the privilege of citizenship. In particular decision-makers are directed to have regard “to the nature and seriousness of the non-citizen’s conduct to date” and the “risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
Applying to the Direction in this case, the Tribunal would be of the opinion that the “nature and seriousness” of the Applicant’s offences are not at the higher level of any scale which might be imagined. They are perhaps best chararacterised as real but not serious.
Nevertheless as they are indeed real, especially given concerns about the Applicant’s drink-driving record which poses real threats to the community, this criteria must weigh (although not overwhelmingly) against the Applicant.
Best interests of the Children
Judicial Authority
There is a body of authority from the High Court[45], the Federal Court and this Tribunal regarding the best interests of the children.
[45] Minister of State for Immigration and Ethnic Affairs v Ah Hin TEOH [1995] HCA 20
I have found the most useful exposition for the purposes of these proceedings and circumstances set out in WAN v Minister for Immigration and Multicultural Affairs[46] per Branson, North and Stone JJ. Their Honours state:
“An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.”[47]
[46] [2001] FCA 568
[47] WAN v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [32]
Similarly in Murad[48] the Griffiths and Perry JJ held that:
“ Cases such as Nweke and Lesianawai illustrate how procedural unfairness can occur if, in conducting the balancing exercise under s 501, consideration of the best interests of a child is left at the level of mere hypothesis of possible harm, as opposed to the decision-maker first determining what in fact are those best interests, and only then assessing whether the strength of any other relevant considerations (whether primary or otherwise), such as risk of harm to the Australian community, outweighs the child’s best interests as a primary consideration. Thus, in both those cases, it was found that the Minister had fallen into error when the Minister’s statements of reasons indicated that the balancing exercise had been conducted on the basis of a finding or assumption that it may be in the children’s best interests if their father’s visa was not cancelled, without any decisive determination being first made on what the best interests of the children actually required.”
[48] Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 at [31]
Not only must the best interests of the child be given primary consideration but the impact of revocation on such children must be considered specifically and in line with Direction 65. Failure to do so, or giving only “minimal” weight to this consideration would constitute error on the part of the Tribunal.[49]
[49] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at 14 per Mortimer J
I note further that while the best interests of the child must be a primary consideration, they are still subject to being balanced with other primary considerations. This was made clear by the Full Federal Court in Vaitaiki:
“I should make it perfectly clear that none of this is to say that the tribunal could not have validly reached a decision that the deportation should proceed. I agree with the learned primary judge that it could. But such a decision requires a weighing up of all those factors the tribunal is bound to take into account, and in this case the interests of the children were a primary consideration.”[50]
[50] Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at [614] per Burchett J
This weighing up process is clearly articulated in the Tribunal’s decision in Applicant 4264:
“Having considered the applicable primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41][51], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.”[52]
[51] An earlier version of Direction 65
[52] Applicant 4264 of 2011 v Minister for Immigration and Citizenship [2011] AATA 920
The Courts have made it clear that in the specific matter of assessing the chances of re-offending: “It was a matter for the Tribunal to determine the evidence upon which it would place weight in assessing that question.”[53]
[53] Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27 at 133 per Siopis J
Policy Directions
The identification of the best interests of the child as a matter of primary concern for decision-makers in relation to the exercise of Ministerial discretion has a long and evolving history in terms of Ministerial Directions given under s 499 of the Act or formal Policy Statements.
·The first statement was made on 4 May 1983 by Minister Stewart West. It provided that decision makers should have regard to “the degree of hardship which would be caused to lawful residents of Australia, especially Australian citizens, known to de affected adversely by deportation…..”[54]
·Minister Robert Ray made a statement in December 1988 to draw attention to where “occasionally, the tribunal (AAT) appears to have misunderstood the Government’s policy and extent to which it must have regard.”[55]
·Minister Gerry Hand announced a new policy, effective 24 December 1992: Australia’s Criminal Deportation Policy which did not mention the effective operational guidelines for the exercise of ministerial discretion
·Minister Philip Ruddock issued the first formal s 499 Direction on 16 June 1999 as Direction no. 17. It provided that the best interests of the child were to be a primary consideration for decision-makers and provided extensive guidelines on their interpretation[56]
·This Direction was revised (as Direction 21) by Minister Ruddock in August 2001 where the interests of the child were designated as primary considerations. In addition Direction 2 provided that: “the prohibition of refoulement under the CAT and ICCPR is absolute: there is no balancing of other factors if refusal or cancellation would amount to refoulement under the CAT or ICCPR.”[57]
·Ministerial Direction 41 was issued by Minister Chris Evans on 3 June 2009 and listed four primary considerations. The fourth of these was “relevant international obligations” under which the best interests of the rights of the child was comprehended “as described in the Convention on the Rights of the Child”[58]
·Ministerial Direction 55 was made by Minister Chris Bowen on 25 July 2012 and listed four primary considerations: protection of the Australian community; strength, duration and nature of the person’s ties to Australia; the best interests of minor children in Australia and whether Australia has international non-refoulement obligations to the person.[59]
·The final iteration is Ministerial Direction 65, issued by Minister Scott Morrison on 22 December 2014 in which there are three identified primary considerations: protection of the Australian community; the best interests of minor children in Australia and the expectations of the Australian community. International non-refoulement obligations, or references to the Convention on the Rights of the Child are not included as primary considerations.[60]
[54] Minister for Immigration and Ethnic Affairs: Criminal Deportation Policy: Ministerial Statement, House of Representatives, Hansard, 4 May 1983 at p. 169
[55] Minister for Immigration, Local Government and Ethnic Affairs: Ministerial Statement, Senate: Hansard, 8 December 1988 at 3769-70
[56] Ministerial Direction no 17 (16.6.1999) at 2.13-2.16
[57] Ministerial Direction no 21 (23.8.2001) at 2, 13-2.16 and 2.21. CAT = Convention Against Torture. ICCPR = International Covenant on Civil and Political Rights
[58] Ministerial Direction no. 41 (3.6.2009) at s 10(1)(d)(i)
[59] Ministerial Direction 55 (25.7.2012) at s 9
[60] Ministerial Direction no 65 at s 9(1)
The Tribunal must turn its attention to the best interests of the Applicant’s two children and equally weigh these up against the other primary considerations in order to come to some sort of conclusion “on balance.”
The exact nature of the Applicant’s relationship with his Elder Child is somewhat unclear. It appears that the Elder Child is less engaged in any sort of activities with the Applicant; preferring to spend time “on [the] computer” and there is no evidence of any degree of highly participatory joint activities. It is also noted by the Tribunal that neither the Applicant’s fiancée nor the Friend has ever met the Elder Child. The Elder Child does not appear to have spent the last Christmas vacation period with the Applicant, as was the case with the Younger Child. The Elder Child is only a few months away from ceasing to be a minor but is a minor at the time of this review. There is no reason to doubt the Applicant’s professed love for or concern for his Elder Child’s welfare, education and future.

There is significant evidence of the closeness of the Applicant with his Younger Child, both in his own statements and in the statement of witnesses and indeed in the report of the consultant psychologist. Although the Younger Child is a minor, the child is not much younger than the sibling. The closeness of the mutual activities of father and child are evident and I have no doubt the Younger Child would be significantly impacted by loss of contact with the father.
I am equally sure that the events of 21/22 January must have been traumatic for the Younger Child. To go to bed after a prolonged period of time spent with the father, only to be woken up to find the father gone, to be provided with what was a false story about the father’s fate and to be delivered home without seeing the father again and still under a false impression about the father’s whereabouts or circumstances cannot have been anything but seriously traumatic.
I have no doubt, and the Respondent fully conceded, that the best interests of both of the children, but especially the Younger Child, should weigh heavily in favour of a decision which would not have the result of severing the father-child ties or making them impossible to sustain.
Expectations of the Australian Community
The respondent argues that the expectations of the Australian community are such that in effect, almost any offender, should be dealt with by refusal of such visa applications. In this instance it was put as follows:
“The applicant has repeatedly offended while in Australia and, in particular, in the last couple of years. While he claims to have been recently rehabilitated, his recent conduct would suggest otherwise particularly as he was twice convicted of high range drink driving in the same year followed by the conviction of driving while suspended last year. The respondent contends that, in the view of the applicant’s repeated offending behaviour, the Australian community would have a high level of expectation that the visa would be refused.”[61]
[61] Respondent Statement of Facts, Issues and Contentions at [37]
In YNYQ v Minister for Immigration and Border Protection[62] Mortimer J discussed this aspect of the Ministerial Direction. Her Honour opined:
“In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[63]
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do” (my emphasis added)[64]
[62] YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466
[63] Ibid at [76]
[64] Ibid at [77]
In Uelese v Minister for Immigration & Border Protection,[65] Robertson J similarly remarked:
“In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven “Principles”. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, “simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa”. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
This ground of review does not attack the statements in Direction no. 65. In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.”
[65] [2016] FCA 348; 248 FCR 296 at [64]–[65]
On the other hand I would draw attention to this Tribunal’s rulings in a number of similar matters. This is best encapsulated in a recent passage from a decision of Deputy President Boyle in Mahu v Minister for Immigration and Border Protection[66] which includes extensive citation of other Tribunal decisions.
[66] Mahu v Minister for Immigration and Border Protection [2018] AATA 161 [72]-[78]
The Applicant also refers to KDSP and Minister for Immigration & Border Protection [2017] AATA 2169, wherein Senior Member M J McGrowdie stated at [36]:
“The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant’s behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.”
The Tribunal also refers to the principle identified in paragraph 6.3(7) of Direction 65 which directs the decision-maker to consider:
“The length of time a non-citizen has been making a positive contribution to the Australian community, …”
The Tribunal also notes Deputy President Forgie’s comments in Rabino and Minister for Immigration & Border Protection [2016] AATA 999 at [68] that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” That assessment should be made on the basis of the individual circumstances of each case and considered in light of the purpose of the legislation. The Tribunal agrees that that is the appropriate approach.
The Tribunal also notes Deputy President McCabe’s comments in Do and Minister for Immigration & Border Protection [2016] AATA 390 at [23]:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done
A similar formulation was expressed by this Tribunal in Waits and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 1336 at [36]:
“… the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”
The Tribunal notes and takes into account in this decision the statements of principle set out in those cases.”
I also refer to a decision by Deputy President Rayment to the effect that:
“If the applicant were to be returned to a country where he would be placed in a life-threatening situation … that would represent an “other” reason why the reviewable decision should not be affirmed. Also, such a humanitarian concern would significantly affect the expectations of the Australian community (a primary consideration) as to whether the cancellation should be revoked, and would also go to the extent of impediments faced by the applicant if he were removed (an “other” consideration).”[67]
[67] Ahmed v Minister for Immigration and Border Protection, [2017] AATA 1908 at [30]
I have spent some time reviewing these authorities because it leads to my conclusion that while this section of the Direction is a statement of government policy, and thus to be given due consideration by the Tribunal, mindful of the statement in Aston that “Policy is not law. A statement of policy is not a prescription of binding criteria”,[68] it is also mandatory upon the Tribunal, under the Act to give it primary weight in its decision-making process.
[68] Re ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306 at [21]
However as I have determined to follow the line of reasoning set out in various Tribunal decisions referenced above, especially that of Senior Member McGrowdie to the effect that the Australian community is not “intolerant of any risk”, it follows that I do not see this section of the Direction as fatal to the Applicant’s claim.
Although as both Mortimer J and Robertson J have made clear, (see paragraphs 120 and 121 above) this criteria ipso facto counts against the Applicant regardless of the circumstances of the case. In my view it counts negatively to only a small and not overly significant degree.
In terms of balance, I have no doubt that the best interest of the minor children taken as a whole, far outweigh the weight which I should give to the other two primary considerations
Other Criteria
Set out in section 10 of the Direction[69] are Other Criteria which are:
a.International non-refoulement obligations;
b.Strength, nature and duration of ties;
c.Impact on Australian business interests;
d.Impact on victims;
e.Extent of impediments if removed..
[69] Ministerial Direction no.65
International non-refoulement obligations: this Tribunal has already determined that the Applicant who should not be returned to India.
This determination has been accepted by the Respondent who, in its Statement of Facts, Issues and Contentions states: “Therefore it is accepted that, if there is no other country than India to which the applicant could be removed, non-refoulement obligations will be engaged.” [70]It states its position further:
“…. Ultimately, while it remains the position that the applicant is a person to whom Australia owes protection obligations, it would be contrary to Government policy that he be removed to India and other options would need to be explored in relation to him.
It should be noted that cl. 12.1(2) of the Direction states that the existence of a non-refoulement obligation does not preclude refusal of a visa application. This is because Australia will not remove a non-citizen, as a consequence of the refusal of the visa application, to the country in respect of which the non-refoulement obligation exists.
It should be noted that the last sentence of clause 12.1(6) is not relied upon by the respondent as this wording is now inconsistent with the operation of s 197C. However, the strong statements of government policy in the Direction are relied upon as indicative that a solution other than removal to India will be pursued should the visa be refused.”[71]
[70] Respondent Statement of Facts, Issues and Contentions at [39]
[71] Ibid at [41]-[43]
This penultimate sentence in the Respondent’s Statement of Facts, Issues and Contentions quoted above is significant. The sentence referred to reads:
“Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operations of sections 189 and 196 of the Act means that, if a person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.”
The inclusion of the sentence referred to above by the Respondent has been criticised and called into question by this Tribunal in at least two decisions[72] and I accept the Respondent’s retreat from it.
[72] PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 (Deputy President Forgie), BHKM v Minister for Immigration and Border Protection [2018] AATA 3 (Deputy President Rayment)
Section 196 of the Act provides:
Duration of detention
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa)     an officer begins to deal with the non-citizen under   subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5) To avoid doubt, subsection (4) or (4A) applies:
(a)      whether or not there is a real likelihood of the person   detained being removed from Australia under section 198 or 199, or   deported under section 200, in the reasonably foreseeable future;   and
(b)       whether or not a visa decision relating to the person detained is, or   may be, unlawful.
(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
“visa decision” means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
Section 197C of the Act provides:
“197C Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non- citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non- citizen.”
Section 189(1) of the Act provides:
“If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”
Section 198 (6) of the Act provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa   that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the   application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a   substantive visa that can be granted when the applicant is in the   migration zone. ”
The practical operation of these sections was considered by North ACJ in DMH16:[73]
“…. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.
That view of the Minister’s reasons is supported by the advice provided in the submission to the Minister at [73], which erroneously stated that s 197C does not abrogate, for the purposes of Australia’s domestic laws, Australia’s non-refoulement obligations assumed under international law. That is an incorrect understanding of the operation of s 197C in conjunction with an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198…..”
[73] DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [26]-[27-
It was further considered by Siopis J in NKWF who observed that, in relation to a person owed non-refoulement obligations in relation to Afghanistan:
“…the gravamen of the decision in DMH16 and, in particular, that part of the decision that held the import of s 197C and s 198 of the Migration Act was that, on refusal of the visa application, the applicant was required to be removed from Australia, as soon as reasonably practicable. … unless the Minister intervened under one or both of the alternative management options referred to by North ACJ, s 197C and s 198 of the Migration Act required that the applicant be removed to Afghanistan as soon as reasonably practicable.”[74]
[74] NKWF v Minister for Immigration and Border Protection [2018] FCA 409 at [41]
It has been necessary to spell out the provisions of the Act and the details of the recent judgements of North ACJ and Siopis J because they provide guidance on the apparent guarantees which are referred to by the Respondent. Reference to policy statements or future plans by the Government cannot override the operations of the Act in the absence of some appropriate visa being granted.
The prospect that the Applicant could be removed to India exists. Of course this may not be “practicable” – especially if the Applicant does not have a passport which is recognised by the Indian Government – either because of the issue of the Applicant’s name or for the same reasons that there was apparently a problem with the return of the Applicant’s travel documents when he sought to return to India in 2007.
As I understand it there is no other country to which the Applicant could be removed. There is equally a possibility that he could remain in indefinite immigration detention as there is no way in which the Minister can be compelled to exercise his discretion to grant certain classes of visas.

The Respondent drew attention to the operation of s 195A of the Act which provides (in part) that the:
Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
It should be noted that the exercise of the power under this section is reserved personally to the Minister (section 195A(5) and is not compellable (section 195A(4)). Although not necessarily of much comfort to the Applicant, it was however raised by the Respondent in order to indicate the range of options, other than indefinite detention which remain open to the Minister.
In my view it would not be tolerable for the Applicant to be removed from Australia, especially to India; nor would it be appropriate for him to be retained in indefinite detention.
In relation to this “other” consideration to be considered as part of the overall assessment of the Applicant’s case, I find that it weighs substantially towards a favourable outcome for him.
Strength, duration and nature of ties: this weighs in favour of the Applicant. He has been a generally productive member of the Australian community for twenty plus years. It was uncontested in evidence that the Applicant has worked and paid taxes throughout his time in Australia and has never applied for or received any government welfare benefits. He has family ties here to his Australian children and his Australian fiancée and Australian friends. There is no doubt they would suffer detriment should he be removed. Direction 65 recognises (in section 6.3(5)) that even in relation to criminal conduct a higher level of tolerance may be forthcoming to those non-citizens who have lived in the Australian community for a prolonged period of time[75].
[75] See also Mahu v Minister for Immigration and Border Protection [2018] AATA 161 at [73]
Impact on Australian business interests: irrelevant.
Impact on Victims: this is a matter than counts neither for nor against the Applicant. There is no evidence that his ex-wife or the girlfriend of his friend (who were the victims of the domestic violence charges) would suffer any detriment were the Applicant to remain. Indeed his ex-wife may suffer some detriment (undetermined) if his financial support for his children were to cease. It does not count against the Applicant.
Extent of impediments if removed: Leaving aside matters dealt with in relation to the non-refoulement criteria, I find that the Applicant would suffer considerable impediments were he to be removed – these would be loss of contact with family, fiancée and friends and a loss of the possibility of making a better life in Australia. It is a criterion to be counted in the Applicant’s favour.
CONCLUSION
I consider the matters outlined above which weigh in favour of discretion being exercised in the Applicant’s favour are more substantial than those which weigh against it. I accept that there is some risk of reoffending but that it is not a high risk. I am not persuaded that the expectations of the Australian community, in this particular instance would result in a negative determination of this application. I believe that the best interests of the children weigh substantially in favour of the Applicant.
Although I cannot find that the Applicant is a person of good character according to the tests and criteria established under the Act, I believe that ministerial discretion should be exercised in his favour because the best interests of his children outweigh other considerations and that the delegate, in the first instance failed to acknowledge this.
The Tribunal makes the following orders:
I.Under s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act the reviewable decision is set aside, and
II.The matter is remitted to the Department with a direction that ministerial discretion s.501(1) should be exercised in the Applicant’s favour.

I certify that the preceding 152 paragraphs are a true copy of the reasons for the decision herein of Senior Member C Puplick AM

............................[sgd]............................................
Associate
Dated: 16 April 2018

Dates of hearing: 4 April 2018; 5 April 2018; 11 April 2018

Counsel for the Applicant: Ms Alexandra Rose

Solicitors for the Applicant: Legal & Company Solicitors

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	4 April 2018; 5 April 2018; 11 April 2018
Counsel for the Applicant:	Ms Alexandra Rose
Solicitors for the Applicant:	Legal & Company Solicitors
Solicitors for the Respondent:	Australian Government Solicitor