"BHFC" and Minister for Immigration and Citizenship
[2013] AATA 166
[2013] AATA 166
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0171
Re
"BHFC"
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Date 25 March 2013 Place Adelaide The decision under review is affirmed.
........................................................................
Deputy President D G Jarvis
CATCHWORDS
IMMIGRATION - Visa application - character test - Direction 55 - substantial criminal record - held that pattern of frequent non-violent offences of dishonesty constituted an unacceptable risk of harm to the Australian community - substantial risk of re-offending - non-refoulement obligations owed to applicant - asserted delay in processing visa application - time spent in Australia not relevant to discretion to refuse visa - decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 501
CASES
MZYYO v Minister for Immigration and Citizenship [2013] FCA 49
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Sami v Minister for Immigration and Citizenship [2013] FCA 106Shi v Migration Agents Registration Authority (2008) 235 CLR 285
SECONDARY MATERIALS
Ministerial Direction No. 55 - Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President D G Jarvis
25 March 2013
The applicant has applied to this tribunal for review of a decision by a delegate of the Minister for Immigration and Citizenship to refuse to grant him a Transitional (Permanent) (Class BF) visa, on the basis that he did not satisfy the character test in s 501 of the Migration Act 1958 (Cth) (the Act).
The applicant has a number of convictions, to which I will refer below, in respect to which he was sentenced to imprisonment for a term of 12 months or more. I accordingly find that he does not pass the character test in s 501(6)(a) of the Act. The only issue before the tribunal is whether it should exercise its discretion to set aside or affirm the decision made by the delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant’s application for the visa concerned.
RELEVANT LEGISLATION AND POLICY
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test is defined in s 501(6). This provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), and the section provides relevantly as follows:
“For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(c) having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; …”
The expression “substantial criminal record” is defined in s 501(7) as follows:
“(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; …”
Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal.[1] This obligation is subject to s 499(2), which provides that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.
[1] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
On 25 July 2012, the Minister exercising his powers under s 499(1) of the Act, issued “Direction No. 55 – Visa refusal and cancellation under s 501” (the Direction). It has not been suggested in the present proceedings that the Direction is inconsistent with the Act or regulations, and in my view there would be no basis for any such suggestion. The Direction includes a preamble containing its objectives, general guidance for decision-makers, and Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person’s visa under s 501.
The preamble includes a statement that where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel a visa given the specific circumstances of the case.[2] The Direction goes on to provide, under the heading “General Guidance”, as follows:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”[3]
[2] Paragraph 6.1(2).
[3] Paragraph 6.2(1).
The Principles commence with the proposition that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. The Principles include the following propositions:
“(1)… Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”[4]
[4] Paragraph 6.3.
In the context of exercising the discretion a decision-maker is required to take into account the considerations in Part A or Part B of the Direction, and is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercising, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.[5] The Direction further provides that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa will be approved.[6] Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa; primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.[7]
[5] Paragraph 7(1)(b).
[6] Paragraph 8(1).
[7] Paragraphs 8(3)-(5).
Part B of the Direction is the relevant Part in the present proceedings. It identifies considerations relevant to visa applicants in determining whether to exercise the discretion to refuse their visa applications. Annexure A provides direction on the application of the character test. I will refer further to relevant provisions of the Direction as they relate to the applicant’s application for review.
BACKGROUND FACTS
The following background facts are not in contention, and are based principally on the documentary material before me.
The applicant was born in Iran and is aged 43. When he was six he was sent to an American boarding school in India for two years, and learned to speak English there. He returned to Iran and remained there for about a year. At about this time the Iranian revolution occurred, and his parents and he fled to Europe, and later went to the United States of America, arriving there in 1980. The family were granted refugee status in the United States.
The applicant lived with his parents, but later his parents separated as a result of the abusive conduct of his father towards his mother. After that he continued to live with his mother, and he completed his schooling in California. After leaving school he was employed in his father’s business for a period, then in a shoe store, and then, after completing a real estate course, as a real estate agent. He was charged with a number of offences in the United States, to which I will refer below.
He also gave evidence, which I accept, that he had suffered a serious head injury in 1988 in a motor vehicle accident in the United States, and was in a coma for about a week and then suffered left side paralysis for about two weeks. He maintains that this accident has had ongoing effects on his short-term memory and his personality, in that he was more extroverted after the accident and also more impulsive. The material before me includes a report by Dr David Kelly, a psychiatrist, dated 19 June 1997,[8] and reports from three psychologists, namely Richard Balfour dated 4 April 1998,[9] Mr Luke Broomhall dated 23 August 2010,[10] and Mr Keith Smith dated 24 January 2012.[11] These reports do not provide evidence of any clinically diagnosable condition arising from the 1988 accident that could explain or justify the applicant’s repeated offending.
[8] Exhibit R3.
[9] Exhibit R4.
[10] Exhibit A4.
[11] Exhibit R1, G5, Attachment N, page 123.
The applicant first arrived in Australia on 3 October 1991, on a Tourist (Sub-class 664) visa. He then lodged an application for a Special Needs Relative visa on 30 December 1991 in relation to an aunt, who was living in Melbourne. His application was refused in October 1992. In the meantime, his permit to re-enter the United States had expired, and he was placed into immigration detention in the Villawood Detention Centre, and a deportation order was made. This order was revoked in August 1993 when, in consequence of an application for a Domestic Protection Temporary Entry permit lodged in June 1993, he was recognised as a refugee.
In May 1994, the applicant lodged an application for a Protection (Permanent) Entry Permit (817) visa.[12] He was then granted a Bridging C (Class WC) visa in association with his application for the protection entry permit. As a result of legislative amendments, his application was converted on 1 September 1994 to an application for a Transitional (Permanent) (Class BF) visa.
[12] Exhibit R1, G5, Attachment D, page 38.
He gave evidence that he submitted to the required medical examination after lodging his application for the protection entry permit visa, and when he had heard nothing further he went back to the Department’s Adelaide office in February 1995 to inquire about his application, and was told that the file had been referred to Melbourne.[13] He commented that he heard nothing further until October 2001, when he was interviewed by an officer of the Department, and when reference was made to his criminal record.[14]
[13] The Minister did not challenge this evidence at the hearing, although I note that a Minute dated 10 January 2008 records that medical assessments were never undertaken in relation to the application for a Transitional (Permanent) visa, to which the application for a protection entry permit had been converted by operation of law.
[14] A transcript of the interview was tendered, and is Exhibit R6.
In July 2003 an International Treaties Obligations Assessment was undertaken, and the assessment officer concluded that Australia’s non-refoulement obligations applied in the applicant’s case. The assessment took into account concerns that the applicant had expressed, namely that when he was living in Iran, his father was a member of SAVAK, the Shah’s secret police, that his uncle was executed because of his involvement with the Iranian Baha’i movement, that he himself had previously been of the Baha’i faith, and that he had later converted to Christianity.[15]
[15] Exhibit R1, G5, Attachment T, page 137.
On 10 January 2008, a Minute was prepared by a Departmental officer for the purpose of a delegate considering refusal of the applicant’s outstanding visa application on character grounds under s 501(1) of the Act.[16] The delegate decided not to refuse the application, but a warning letter dated 16 January 2008 was sent to the applicant advising him of the operation of s 501 of the Act. He was further advised his then Bridging (C) visa would continue to provide him with permission to remain in Australia. However, the letter continued:
“The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.”[17]
The applicant gave evidence that he interpreted this letter as a warning that his visa application would not be refused if the level of his offending (by which he meant the nature of the crimes he committed) did not escalate. I do not accept that evidence. I find that the applicant was given an appropriate warning of the consequences of any re-offending.
[16] Exhibit R1, G5, Attachment F, page 76.
[17] Exhibit R1, G5, Attachment P, page 128.
By letter dated 21 August 2009, the applicant was advised that his application for a protection visa was refused on the grounds that he had not provided a Form 80 containing personal particulars for character assessment, and criterion 4002 could not be assessed with the information required by that form.[18] The applicant applied to the Refugee Review Tribunal (RRT) for review of this decision. The RRT set aside the Department’s decision to refuse the visa application and remitted it for reconsideration on 18 December 2009.[19]
[18] Exhibit R1, G5, Attachment G, page 84. Criterion 4002 requires in effect that the person is not assessed by ASIO to be directly or indirectly a risk to security, within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth).
[19] Exhibit R1, G5, Attachment H, page 86.
The Department subsequently made a further assessment of the applicant’s character, and on 7 January 2013, a delegate of the Minister made the decision that is the subject of the present proceedings to refuse the applicant’s application for a Transitional Visa. As a result, his Bridging C (Class WC) visa was cancelled by operation of law.
APPLICANT’S CRIMINAL HISTORY
Since arriving in Australia in 1991, the applicant has recorded almost 200 convictions, with his first conviction occurring approximately nine months after his arrival. I will not in these reasons set out all of his convictions. They are listed in Exhibit R1[20]. Of the period of about 22 years that he has lived in Australia, he has been sentenced to approximately 15 years in prison.
[20] Exhibit R1, G5, Attachment I, pages 91-99.
The convictions which included sentences of imprisonment are as follows:
Date Offence Court Result 19 January 1996
· Damaging property
· Break And Enter Building And Commit Offence
· Break And Enter Building And Commit Offence
· 15 months imprisonment
· 15 months imprisonment
· 10 months imprisonment (cumulative)
13 June 1997
· Break And Enter Building And Commit Offence
· 12 months imprisonment
22 May 1998
· Break And Enter Building And Commit Offence
· Larceny
· 17 months imprisonment
· Convicted, no penalty imposed
21 September 2000
· Larceny (4 Charges)
· Disorderly Behaviour (2 Charges)
· Hinder Police
· Fail To Comply With Bail Agreement (2 Charges)
· Unlawful Possession
· Serious Criminal Trespass (2 Charges)
· 12 months imprisonment (suspended)
21 December 2001
· Application For Enforcement of a Breached Bond
· Serious Criminal Trespass
· Application for Enforcement of a Breached Bond
· 12 months imprisonment
· 7 months, 2 weeks and 2 days imprisonment (cumulative)
· 3 months imprisonment (consecutive)
5 November 2004 · Serious Criminal Trespass
· Dishonestly Take Property Without Owner’s Consent
· 13 months imprisonment
· 13 months imprisonment (cumulative)
25 January 2010 · Serious Criminal Trespass (2 Charges)
· Dishonestly Take Property Without Owner’s Consent
· Fail to Comply With Bail Agreement (2 Charges)
· Fail To Pay Taxi Fare
· 15 months imprisonment (suspended)
· Convicted, no penalty imposed
· Convicted, no penalty imposed
· Convicted, no penalty imposed
17 September 2010 · Serious Criminal Trespass (3 Charges)
· Dishonestly Take Property Without Owner’s Consent (3 Charges)
· Damage Property
· Breach Of Suspended Sentence
· Enter Or Remain In Casino While Excluded By Commissioner (4 Charges)
· Urinate In a Public Place
· 21 months imprisonment
· 21 months imprisonment (concurrent)
· 21 months imprisonment (concurrent)
· 15 months imprisonment (cumulative)
· Convicted, no penalty imposed
· Convicted, no penalty imposed
CONSIDERATION
Part B of the Direction sets out the primary and other considerations applicable to visa applicants. The primary considerations are:
“a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Whether Australia has international non-refoulement obligations to the person.”
Protection of the Australian community from criminal or other serious conduct
When considering protection of the Australian community, the Direction requires decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. The Direction provides that decision-makers should also give consideration to:
“a) The nature and seriousness of the person’s conduct to date; and
b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.”[21]
[21] Paragraph 11.1(1).
The applicant asked me to take into account a number of matters when considering the nature and seriousness of his offending. These included his family background and his difficult relationship with his father. His father made a short visit to Australia in about March 2010, at a time when the applicant had been discharged from gaol, had obtained Housing Trust accommodation, and had just commenced employment for the first time since arriving in South Australia. He said that he had had a very serious argument with his father during this visit, and that greatly upset and disturbed him, and had led to his committing the offences of which he was convicted on 17 September 2010. I also take into account that according to his report of 23 August 2010, Mr Broomhall concluded that the applicant met the diagnostic thresholds for cannabis dependence, amphetamine dependence and alcohol abuse at the time of the offences leading to the then current charges, which were the charges that resulted in the most recent convictions of 17 September 2010.
The applicant also asked me to take into account letters of support from his mother, Mr Allan Bridges, the Programs Manager of the Mount Gambier prison, and from Father Khalid Marogi, as well as submissions made on his behalf by Mrs Gay Gardner of the Legal Services Commission, which are included in exhibit R1, and which were supplemented by a letter of 22 February 2013.[22] The submissions emphasised in particular that the applicant’s criminal record was at the lower end of the scale having regard to the nature of the crimes committed, and drew attention to his difficult personal history including his head injury, and the likelihood that he would be persecuted and discriminated against should he be returned to Iran.
[22] Exhibit A2.
Under the heading the nature and seriousness of the person’s conduct, the Direction requires decision-makers to have regard to a non-exhaustive list of specific factors.[23] The applicant submitted that a number of these factors are not relevant to his offending. In relation to paragraphs 11.1.1(1)(a) and (b), he contends that he has not committed violent or sexual crimes or crimes against vulnerable members of the community. Paragraph 11.1.1(1)(a) is expressed to apply without limiting the range of offences that may be considered to be serious. In Sami v Minister for Immigration and Citizenship,[24] McKerracher J commented, in the context of the predecessor of Direction 55:
“It cannot be said that offences simply involving fraud and theft are not of a serious nature.”
In that case the applicant had committed 49 offences in Australia between May 2001 and September 2009. I think that the applicant’s offending in the present case should be regarded as serious in view of its regular and repeated occurrence. As to paragraph 11.1.1(c), the applicant correctly pointed out that he has not offended while in immigration detention or during or after an escape from immigration detention.
[23] Paragraph 11.1.1.
[24] [2013] FCA 106 at [33].
In evidence the applicant explained the circumstances that gave rise to his frequent repeated offending as follows. He had been transferred from immigration detention into the Parramatta Gaol, and had been incarcerated there with hardened criminals, but notwithstanding this, he has not engaged in serious or violent offending. When he was discharged from goal he had not been provided with assistance to obtain social security support and had nowhere to live. He needed to obtain money to support himself, and also to satisfy his addiction to alcohol and drugs. He was usually affected by alcohol when he was offending. It also appeared from his evidence that he regards himself as having been institutionalised, and that gaol has ceased to be a deterrent to him.
Other factors specified in paragraph 11.1.1 of the Direction are applicable in the present matter. In particular, I refer to the following matters.
(a)I find that the applicant also does not pass the character test under s 501(6)(c) in view of his past criminal conduct, taking into account the frequency of his convictions, his breaches of bonds or conditions of parole, and his continued offending in spite of assurances made to various courts that he had learned his lesson and would not re-offend. The Direction provides that any conduct that forms the basis for such a finding is considered to be serious.[25]
(b)Many of the sentences imposed by the courts have involved a custodial sentence,[26] and that is an indication that the courts concerned regarded those offences as serious.
(c)As mentioned above, the applicant’s offending has been frequent and regular, although as he pointed out, there has not been a trend of increasing seriousness.[27]
(d)The cumulative effect of the applicant’s repeated offending has involved repeated involvement of the criminal justice system, with resultant community expense.[28]
(e)The applicant initially provided false or misleading information to the Department, by not disclosing particulars of his prior criminal offending in the United States.[29] As to this matter, I do not accept his explanation that he understood the questions on the relevant application form to be confined to an obligation to disclose felonies committed before he came to Australia.[30] The applicant accordingly provided false or misleading information to the Department in his application for a visitor’s visa in August 1991.
(f)According to a record of his offending history in the United States, he had been charged with some eight offences in the United States, and it appears that he was convicted of at least three of those offences and that the relevant offences were classified as offences in Australia.[31]
[25] Paragraph 11.1.1(1)(d).
[26] Paragraph 11.1.1(1)(e).
[27] These two considerations are referred to in paragraph 11.1.1(1)(f).
[28] Paragraph 11.1.1(1)(g).
[29] See paragraph 11.1.1(1)(h).
[30] See Exhibit R6, page 13, question 82, where the applicant accepted that the wording on the form asked whether he had been convicted of or had any charges outstanding on a criminal offence in any country.
[31] See paragraph 11.1.1(1)(i).
The Direction next lists certain criteria relating to the risk to the Australian community should the person concerned commit further offences or engage in other serious conduct. Under this heading, the Direction provides as follows:
“(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.”[32]
[32] Paragraph 11.1.2(1).
As to this, the applicant contended that there was no risk of harm to individuals, and that he was not a threat to anyone, because his offending generally entailed theft from business premises where he expected that there would be cash. He said he had rationalised his conduct on the basis that no physical harm would be done to any person, the losses of the business would be covered by insurance, and the businesses could claim tax deductions for the resulting losses. In fact, certain of his offences did constitute violent offences, but the last conviction for such an offence was now some time ago, on 21 October 2003, and then a conviction without penalty was recorded.[33] I also take into account that there is no evidence that the potential harm to the Australian community has been increasing.
[33] The convictions for violent offences were on 9 March 1994 for unlawful assault, 20 May 1998 and 23 May 2000 for common assault, and 21 October 2003 for fighting: see Exhibit R1, G5, Attachment I, pages 91-99. I note that the penalties imposed were nominal, and this indicates that the offences were not serious.
However, the applicant’s submissions proceed on the basis that paragraph 11.1.2(1) of the Direction is referring to an unacceptable risk of physical harm to individuals. I do not think that this paragraph of the Direction should be so confined, or that it would only apply to violent offences. It refers to “an unacceptable risk of harm to individuals, groups or institutions in the Australian community” (emphasis added). Groups or institutions, as well as individuals, can of course be harmed by offences of dishonesty. In my view a person who has engaged in dishonest conduct as frequently and consistently as the applicant would constitute an unacceptable risk of harm within the meaning of the Direction, having regard not only to the effect of the offending on the victims involved, but also taking into account the total cost to, and effect on, the general community. In addition, the paragraph entails assessing what would constitute an unacceptable “risk” of further offending, and this entails assessing the likelihood of re-offending. In this case, the applicant’s record indicates that there would be a strong likelihood of re-offending, for reasons to which I will refer below.
The Direction next requires decision-makers to consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa.[34] This requirement again entails making a risk assessment, and requires decision-makers to have regard cumulatively to enumerated grounds. The first ground is the nature of harm to individuals or the Australian community should the person engage in further criminal or other serious conduct. I have addressed this issue above. The second ground is the likelihood of the person engaging in further criminal or other serious conduct. As to this ground there is no evidence from an independent and authoritative source to indicate that the pattern of regular offending will not continue. There is no evidence of any material rehabilitative achievement; for reasons beyond his control, the applicant appears to have completed only two rehabilitative programs during his incarceration, and his period with the Drugs Court (although terminated permanently following his convictions in January 2010) did not prevent the continuation of his offending. I am not satisfied that the proposals for him to complete the “Making Changes” course prior to his discharge from his current term of imprisonment will achieve any appreciable degree of rehabilitation.[35]
[34] See paragraph 11.1.2(2).
[35] See the record of referrals and completed courses in Exhibit R2, at page 14.
It is apparent from the documents before me that on many occasions, the applicant has stated that he has learned his lesson and would not re-offend, but his repeated offending contradicts such statements. In answer to a question in cross-examination of whether he believed that he would be successful in his intention not to commit further offences he said that he would do his best to avoid future offending, and he “hoped” that he would be successful, but he did not know how successful he would be. He added that he could not explain his offending, but was trying to get himself out of the cycle of offending.
When he was sentenced in the Adelaide Magistrates Court on 5 November 2004, the presiding Magistrate recorded an assertion made by the applicant to the effect that the time had come for him to put his offending behind him and to move forward to a better life, but the Magistrate made the assessment that he could not believe those assertions.[36] In view of the repeated offending that occurred after that, I also have no confidence that the applicant would now be in a position to desist from future offending, although I accept that such offending would likely entail a similar pattern of offences involving theft rather than violent offending. Even taking into account all of the matters put to me by the applicant, including the matters referred to in paragraphs 27 and 28 above, I have concluded that the first primary consideration weighs heavily in favour of refusing the visa.
[36] Exhibit R5, page 25.
Second primary consideration – the best interests of minor children in Australia
The applicant has no children, and this consideration is not relevant.
Australia’s international non-refoulement obligations to the applicant
The applicant gave evidence of his concerns about danger, persecution and discrimination that he would encounter if he were to be returned to Iran. I accept that non-refoulement obligations are raised by his evidence and by the earlier finding by the assessment officer that Australia’s non-refoulement obligations applied in the case of the applicant.[37] That assessment took into account Australian’s obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention), and humanitarian considerations under the International Convention on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT). It also appears that the delegate whose decision was reversed by the RRT was satisfied that the applicant was a person to whom Australia had protection obligations for the grant of a Protection (Class AZ) visa.[38]
[37] See paragraph 19 above.
[38] Exhibit R1, G5, Attachment H, page 88, paragraph 15.
In her submissions on behalf of the applicant, Mrs Gardner cited various sources to support his concerns of persecution if he were to be returned to Iran. These included a report from the Secretary-General of the United Nations General Assembly dated 15 December 2010, which stated:
“Members of unrecognised religions in particular the Baha’i who comprised the country’s largest non-Muslim religious minority faced multiple forms of discrimination and harassment including denial of employment, government benefits and access to higher education. Some of the Baha’i community have faced arbitrary detention or the confiscation and destruction of their property.”[39]
[39] Exhibit R1, G5, Attachment L, page 116.
The applicant’s evidence of his concerns about being returned to Iran was not challenged, and the respondent accepted that non-refoulement obligations applied in his case. I accept the applicant’s evidence as to his concerns, and find that Australia’s international non-refoulement obligations apply. Accordingly they must be given consideration under paragraph 11.3 of the Direction, and should be weighed carefully against the seriousness of the criminal offending or other serious conduct in deciding whether or not the visa should be refused.[40]
[40] Direction, paragraph 11.3(2).
However, paragraph 11.3 of the Direction provides that the existence of a non-refoulement obligation does not preclude the refusal of a person’s visa, because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists.
It was decided in MZYYO v Minister for Immigration and Citizenship[41] that the Minister’s power under s 198 of the Act to remove a person in immigration detention from Australia is subject to the non-refoulement obligation, and so the Minister has no statutory power to remove the applicant from Australia to any country where the applicant would have a well-founded fear of persecution for grounds recognised in the Refugees Convention.
[41] [2013] FCA 49.
Counsel for the Minister, Mr Kikkert, submitted that this decision would apply equally to the present proceedings, and submitted that I should consider the non-refoulement obligation on the basis that a number of options would be available if the decision under review were affirmed. He submitted that the first option comprised issuing the applicant with a Bridging (Removal Pending) visa along the lines that applied in MZYYO, where the applicant was permitted to remain in Australia temporarily with access to certain Centrelink and Medicare benefits, on the basis that his position would be reconsidered in three years, taking into account his behaviour and compliance with Australian laws over that period. Mr Kikkert submitted that a second option was that the applicant would be deported to a third country (other than Iran), and a third option was that he would be retained in immigration detention.
In view of the applicant’s criminal record in Australia and the United States, it appears unlikely that the Minister would be able to find a third country as a destination for deportation, but I am unable on the evidence to determine which of the remaining two options more likely to apply in this case. Of course each of the three options involves very serious consequences to the applicant. However, it is clear that as a matter of law the Minister would be unable to deport the applicant to Iran, or to any other country if that would involve infringing Australia’s non-refoulement obligation. It is also clear from MZYYO that a decision to refuse a protection visa on character grounds does not amount, in itself, to a decision to remove the applicant from Australia, because at any time prior to removal, it would be open to the Minister to exercise his power under s 195A of the Act to grant the applicant a visa of a particular class, if satisfied that it was in the public interest to do so.[42]
[42] [2013] FCA 49 at [68].
On the above analysis, whilst the third primary consideration favours the grant of a protection visa, I have concluded that it does not outweigh the seriousness of the long pattern of criminal offending involved in the present matter.
Other considerations
The applicant’s mother, father and step-father all reside in the United States of America. He has no siblings. The applicant has an aunt and cousins in Australia but has had very little contact with them. I find that the refusal of his visa application would have virtually no impact on the members of his Australian family.
There is no evidence that the refusal of the visa would have any impact on the Australian community or on any Australian business interests.
The applicant asked me to take into account that he has now spent most of his life in Australia. That is a matter referred to in the Principles set out in paragraph 6.3 of the Direction, in the context of the level of tolerance of criminal or other serious conduct that Australia might afford to a non-citizen. That criterion is then taken up in paragraph 9.2(1) of the Direction, which is expressed to reflect the Principles in paragraph 6.3. However, that paragraph forms part of Part A of the Direction, which relates to the exercise of the discretion to cancel visas held by non-citizens. It is Part B of the Direction which applies in the present case. Although the examples of “other considerations” in paragraph 12 of the Direction are not exhaustive, I consider that time spent in Australia could not be imported into paragraph 12 as a permissible consideration in considering whether a visa should be refused, in the face of its express inclusion in Part A but its omission from Part B. In any event, it would be relevant to a consideration of the amount of time spent in Australia in this case that the applicant has been incarcerated for much of that time due to persistent criminal offending, and has not made a positive contribution to the Australian community or formed strong social or employment links with Australian permanent residents.
The applicant also pointed out that he had lodged his original application in 1994, and if it had been processed in a timely manner, then he would not have by then engaged in the extensive criminal conduct which led to the recent refusal of his visa application. Mr Kikkert in response said that applications for protection visas, on his understanding, invariably took some appreciable time to be determined.
I find it unnecessary to determine whether there was an unusual delay in this matter in processing the visa application, and if so, the reasons for that delay. Consistently with the decision of the High Court of Australia in Shi v Migration Agents Registration Authority[43] it is appropriate for the tribunal to exercise its discretion after taking into account relevant evidence up to the date of its decision. That approach is clearly appropriate in circumstances where the tribunal is considering, in the national interest, whether a non-citizen should be permitted to come into, or remain in, Australia.
[43] (2008) 235 CLR 285.
After taking into account the primary considerations and other considerations, I have decided that the first primary consideration, that is, the protection of the Australian community from criminal or other serious conduct, outweighs the other relevant considerations, and that the delegate’s decision to refuse the application for the visa should be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis .....................[Sgd]...................................................
Associate
Dated 25 March 2013
Date of hearing 13 March 2013 Applicant In person Counsel for the Respondent Mr S Kikkert Solicitors for the Respondent In-house Litigation, Minister for Immigration and Citizenship
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