BLSL and Minister for Home Affairs (Migration)

BLSL and Minister for Home Affairs (Migration) [2018] AATA 3681 (2 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3963
Re:BLSL
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:2 October 2018
Place:Melbourne

The Tribunal affirms the decision of the respondent’s delegate dated 28 June 2018 refusing an application by the Applicant for a Protection (Class XA) visa.
..................................
Senior Member
Catchwords
IMMIGRATION – decision refusing to grant protection visa – decision refused on character grounds – where applicant owed international non-refoulement obligations – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 197C, 198, 501
Road Safety Act1986 (Vic)
Cases
Do v Minister for Immigration and Border Protection, Re [2016] AATA 390
Waits v Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
BHKM v Minister for Immigration and Border Protection, Re [2018] AATA 3
Secondary Materials
Direction No. 65, Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Instrument made on 22 December 2014).
REASONS FOR DECISION
R Cameron, Senior Member
2 October 2018
INTRODUCTION – REVIEWABLE DECISION

This is an application for review of a decision made on 28 June 2018 by a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection under section 501(1) of the Migration Act 1958 (“the Act”) to refuse an application by the Applicant for a Protection (Class XA) visa. (“the reviewable decision”)
BACKGROUND
The Applicant is a citizen of India. He is 32 years old.
He was raised as a Sikh. In approximately October 2010 he converted to Islam. On 9 May 2013 he lodged an application for a Protection visa claiming to fear harm should he return to India, and in particular fearing that he would be killed by his family or old friends.
By a decision made by a delegate of the Minister on 14 January 2015, his application for the Protection visa was refused.
Subsequently, he made an application to the Migration and Refugee Division of this Tribunal. On 18 February 2016 the Migration and Refugee Division set aside the decision of the delegate and the matter was remitted for reconsideration with a direction that the Applicant satisfied section 36(2)(a) of the Act.
As noted earlier, by decision made on 28 June 2018, a delegate of the Minister refused to grant the visa under section 501(1) of the Act.
The Applicant applied for review of that decision in this division of the Tribunal on 17 July 2018, within the time limits provided for in section 500(6B) of the Act.
THE ACT AND ISSUES TO BE DECIDED
It is appropriate to reproduce some relevant sections of the Act upon which this matter turns.
Section 501 “Refusal or cancellation of visa on character grounds” provides:
(1)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.
Section 501 (6) “Character test” provides:
(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 risk that the person would:
(i) engage in criminal conduct in Australia;
On a proper construction of these sections of the Act, there are two issues for determination by the Tribunal.
The first issue for determination is whether the Applicant passes the character test under section 501(6) of the Act.
If the Applicant does not pass the character test, the second issue for consideration by the Tribunal is whether the Tribunal should exercise its discretion under section 501(1) of the Act to refuse his application for the Protection visa.
THE APPLICANT’S HISTORY OF OFFENDING
The evidence before the Tribunal concerning the Applicant’s history of offending does not appear to be complete. There is a National Police Certificate[1] that reveals that the Applicant was convicted on several charges and placed on a Community Corrections Order[2] in the County Court of Victoria on 9 November 2017. This appearance in the County Court was by way of an appeal against sentence from a previous decision made at the Broadmeadows Magistrates’ Court on 24 August 2017. The appearance at the Broadmeadows Magistrates’ Court and the outcome of such appearance is not recorded in the National Police Certificate. No other criminal history is recorded.
[1] Pages 17 and 18 of the G-documents.
[2] The Community Corrections Order is at page 103 of the G-documents.
The appearance at the County Court of Victoria on 9 November 2017 resulted in convictions for the following offences:
(a)Drive whilst disqualified;
(b)Use an unregistered motor vehicle on the highway;
(c)Make a threat to kill;
(d)Recklessly causing injury;
(e)Contravene a conduct condition of bail;
(f)Failed to answer bail;
(g)Commit an indictable offence whilst on bail;
(h)Breach an alcohol interlock condition;
(i)Forge an identifying number or authorisation required by the Road Safety Act;
(j)Wilfully injure property; and
(k)Handle/receive/dispose of stolen goods
The Community Corrections Order was for a 12-month period. It contained a supervision provision requiring the Applicant to remain under the supervision of a Community Corrections Officer. There were specific “Treatment and Rehabilitation” provisions. These provisions were that the Applicant was required to:
(a)Undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager;
(b)Undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager; and
(c)Participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
By the time the Applicant was released from custody by Judge Hannan on 9 November 2017 he had already served 114 days in custody following the appearance at the Broadmeadows Magistrates’ Court on 24 August 2017[3]. There was also a significant time he spent on remand before he was granted bail in late 2016.
[3] This fact is to be found on page 13 of the transcript of the hearings before Judge Hannan on 9 November 2017. The prosecutor brought this matter to the attention of the Judge.
It is apparent that the Applicant had previously been imprisoned in November 2016. This is to be found in the Sentence Management Review documents contained in the Supplementary G-Documents at page 213. From the material contained in the G‑documents, together with the evidence given by the Applicant from the witness box, the circumstances surrounding the period of imprisonment in or about November 2016 arose as a result of the Applicant randomly assaulting a member of the congregation of a mosque situated in Jeffcott Street, West Melbourne on 4 October 2016. He was arrested and an application for bail was opposed as he had already been bailed on three previous occasions.
The first incident in relation to which the Applicant was granted bail took place on 24 September 2016 when he assaulted a housemate at a property in Glenroy, about which more will be said later. The second occasion was when he was arrested on 28 September 2018 at the Glenroy property for breaching the terms of his bail which prohibited him from attending the address of the victim. He was, amongst other things, charged with breaching the terms of the bail. Again he was bailed on strict conditions, including the requirement to report to the Police Station daily. He failed to report to the Faulkner Police Station daily. Indeed, he failed to report at all.
On 30 September 2016, he damaged property namely a window at the Coburg Motor Inn by throwing a brick through it. As a result of the assault on the person attending the mosque at Jeffcott Street West Melbourne, the police opposed bail for the Applicant on the grounds that he was an unacceptable risk having continued to commit offences whilst on bail and failed to adhere to his current bail conditions. In the witness box the Applicant acknowledged that he had been in prison and applied for bail sometime in December 2016. He was in custody for a period from approximately 4 October 2016 until his release on bail sometime in November or December 2016[4]. After release on bail, in December 2016, he consulted North Western Mental Health.[5]
[4] The evidence before the Tribunal as to when he was granted bail was not certain. In a letter sent on his behalf by the Asylum Seeker Resource Centre of 3 May 2018 it is stated that he was released on bail in November 2016. A letter from the Australian Red Cross in evidence recorded that the Applicant had engaged the services on 8 November 2016 having just been released from prison. The Victoria Police Criminal Record in evidence before the Tribunal at page 105 of the G-documents recorded that he had served 37 days in custody when he appeared at the Broadmeadows Magistrates’ Court on 24 August 2017. In his evidence from the witness box the Applicant thought that his release probably occurred in December 2016. In the scheme of things, probably not much turns upon this fact other than that he was held in custody for some time after his arrest on 4 October 2016 before he was granted bail.
[5] A report from Anahiti Hosseini Psychiatry Registrar dated 24 July 2017 is in evidence at pages 90-91 of the G-documents. This report will be referred to further in these reasons.
There is a Victoria Police Criminal Record contained in the G-documents[6] which also shows details of the appearance at the Broadmeadows Magistrates’ Court on 24 August 2017 and how those charges were disposed of. The details of the appearance at the Broadmeadows Magistrates’ Court reveal that the Applicant was convicted of, amongst other things, charges of driving whilst disqualified and breaching an alcohol interlock condition.
[6] Pages 104 to 106.
Given the convictions for driving whilst disqualified and breaching an alcohol interlock condition, it is apparent that the Applicant must have been subjected to disqualification for drink-driving on a previous occasion[7]. Presumably, his licence was subsequently restored subject to a term of the previous disqualification or licence restoration to a condition requiring that if he ever obtained the use of the motor vehicle, such car would be fitted with a device requiring him to blow into a tube before starting the car. If alcohol were detected, the car would not start. A breach of this condition is an offence for which a further charge can be laid.
[7] We do not know if the licence cancellation was by order of a court or administrative action by the police following the recording of a positive blood alcohol reading. In the hearing at the County Court of Victoria before Judge Hannan on 8 November 2017 counsel appearing for the Applicant admitted (at page 4 of the transcript) that there were "driving priors" that had been committed by him.
The Applicant gave evidence that he was disqualified from driving when he was caught drink-driving in approximately 2009. He was unable to recall what his reading was; he thought that the period of disqualification was, on the first occasion, 12 months. Such a period of disqualification would indicate a reasonably high blood alcohol reading.[8]
[8] Schedule 1 of the Road Safety Act1986 (Vic) “Minimum Disqualification Periods" reveals that a very high blood alcohol reading must be recorded for a disqualification period of four years to be imposed. Whilst the Tribunal cannot conclude that such a period of licence disqualification was in fact imposed in this instance, it notes that under the schedule a minimum disqualification period of 48 months is applicable where there is a blood alcohol reading recorded of .24. This is expressed in percentage terms of the concentration of alcohol in the blood in grams per 100 millilitres of blood, or in breath in grams per 210 litres of exhaled air.
He gave evidence concerning a second occasion on which he was caught for drink-driving and believed that it was some time in 2012. He stated he was disqualified from driving for four years. This was indicative of the fact that it was a second drink-driving offence and probably a reasonably high reading although, again, he was unable to recall at all what that reading was. It may also be indicative of a relatively higher blood alcohol reading recorded during the commission of a second offence which had the effect of impairing driving or causing the motorist to drive in an erratic manner.
With respect to the conviction for the breach of the alcohol interlock condition, the Applicant’s evidence was that he didn’t have enough funds to pay for an interlock device on his car and he drove the car without such interlock device. His evidence concerning the failure to install an alcohol interlock device and driving the car was unimpressive, given almost with an air of flippancy, and did not reflect well upon his credibility as a witness. More will be said about the Applicant’s credibility as a witness subsequently in these reasons.
This flippancy and casual attitude towards his evidence was also amplified in the context of his drink-driving and associated convictions when one examines the contents of his “Resume” that was in evidence before the Tribunal. In that “Resume” under the heading “Work History” he stated that between 2008-2014 he worked “Taxi Driving”. As is apparent from the material, not to mention his own admissions, he was disqualified from driving for a significant portion of that period. (From the evidence, at least three years.) When confronted with this fact in cross-examination, his response was that it was a mistake because the document had been prepared by someone else. He would not take responsibility for the document and did not concede that he had checked it before its preparation. He was quite prepared for this document to be tendered in evidence and use made of it with this glaring error included. Once again, this does not reflect well on his credibility both as a witness and on his character in general.
The Applicant also conceded in cross-examination that he did not mention any drink-driving conviction, interlock conditions or breach of interlock conditions to the Respondent Department in any submission, statutory declaration or other document. Further, he did not mention such matters in any documents filed with the Tribunal. When confronted with this fact, he stated that he had a submission prepared by his lawyer and had told them of all of his offending. He simply signed a statement prepared by his lawyer. It again reflected a casual indifference or flippancy on his part towards dealings with authority.
The Applicant’s failure to mention any drink-driving conviction, interlock conditions or breach of interlock conditions to the Respondent Department can be readily seen from reading the “Personal particulars for assessment including character assessment” document signed by the Applicant on 6 June 2016. That document contains a question (number 36) which specifically asks whether the Applicant has been convicted of an offence. The Applicant in response to such question said “no”. Lest it needs to be said, the document at “Part S-Declaration” includes the following: “WARNING: Giving false or misleading information is a serious offence” and also contains the following endorsement: “I declare that the information I have supplied in or with this form is complete, correct and up-to-date in every detail.” To simply attempt to pass the blame for the failure to mention these matters in such official documentation cannot be accepted by the Tribunal. Particularly, where he states that he told his lawyer of all of the offending. Surely, he would have read the document to make sure that it was true and correct in every particular. The Applicant presented as someone who was articulate, intelligent and well alive to protecting his interests at all times. It seems inconceivable that he did not, in preparing this official form, appreciate the obligation to complete it truthfully, correctly and accurately. Once again it does not reflect well upon the Applicant’s character.
Driving without a licence in July and August 2016
The Applicant admitted that he was prosecuted on two occasions for driving without a license. The first occasion was on 1 July 2016. He stated that he had left his phone charger at a friend’s place in Fawkner. He stated he was worried about not having the phone charger because he needed to receive calls from his employer advising him when to work as he was employed as a casual at that time. Prompted by these concerns he decided to collect the phone charger by borrowing a friend’s car. Returning from the friend’s house he was intercepted by police and then charged.
The Applicant sought to justify this incident on the basis that it was late at night and he was unable to ask for a lift and because of his dependency on his job to avoid homelessness. He further stated that he was not himself at that time and was stressed and anxious. He was particularly concerned about potentially losing his job. He stated that because he was unwell he made a bad decision due to overwhelming anxiety.
The second occasion he was caught driving without a license was in August 2016. He stated he did not realise that his licence was still cancelled. Once again, he sought to dismiss this as being a result of lack of clear thinking and that had he been well he would not have made such a mistake.
The Applicant appeared far too content to blame stress and job pressures for both these occasions of driving whilst disqualified. He was not prepared to accept any responsibility for his actions. He displayed a casual attitude towards a serious matter when he was in the witness box. The short time span between the first and second offending in July and August 2016 is also of concern. Overall, his explanations were unconvincing. He demonstrated a willingness to resort to disobedience of the road rules without much thought or consideration. It is all the more puzzling to the Tribunal given the fact that he clearly knew what he was doing was wrong and breaking the law.
The matters for which the Applicant was arrested
The Tribunal will now examine the four matters for which the Applicant was arrested and subsequently dealt with in the courts. It is perhaps appropriate to note at the outset that an examination of the transcript of the hearing in the County Court of Victoria before Judge Hannan reveals that, in the customary way, an agreed summary of facts was tendered to the Court. It was accepted by counsel appearing for the Applicant at the hearing. (The Applicant also readily conceded in cross‑examination that the prosecution summary had been shown to him, that he agreed with its contents and to it being handed up to the Judge.) The Judge, after having considered the summary so tendered to the court, described the offending in the following terms: “It’s really significant violence.”
The 24 September 2016 incident at Glenroy
The first incident occurred on 24 September 2016 at a residence in Glenroy that the Applicant was sharing with the victim. There are several versions of this event in evidence before the Tribunal. The essence of the matter is that he came home one day after work and a dispute erupted with his housemate over accommodation arrangements, including payment of rent. This dispute developed to the point where the Applicant struck his housemate several times with a belt. His housemate suffered swelling and cuts. The Applicant then used a butter knife making stabbing motions towards his housemate who raised his hands in self-defence and as a result received shallow cuts to his palm. During the course of this event the Applicant made threats to kill his housemate.

The police attended the Glenroy premises and arrested the Applicant. He was bailed on conditions that included that he not attend the address in Glenroy. He was also required to report daily to Fawkner Police Station.
The 28 September 2016 incident at Glenroy
On 28 September 2016 the Applicant was arrested by police at the Glenroy premises. He was arrested because he had breached the terms of the bail that had been granted to him on 24 September 2016. He has asserted in his submission to the Respondent and in his evidence before the Tribunal that he did not know that he was prohibited from attending the Glenroy premises. He thought that he could attend the premises to collect his belongings. When pressed on the matter in cross-examination he conceded he did know that he could not go there. He further admitted he must have signed his conditions of bail. However, he sought to explain this away by asserting that it just slipped out of his mind. Further, he stated he was not in a proper state of mind and was not thinking clearly at the time. Therefore, he did not realise the consequences for him if he did attend the premises, as he subsequently did. Once again, the tendency of the Applicant to have resort to lack of memory is difficult for the Tribunal to accept. There can be little doubt that the very strict conditions of bail that were imposed on him as a condition of his release on 24 September 2016 would have been explained to him as is the customary practice of the police. Also, as a matter of course and as is required by the bail laws, he would have been obliged to sign an appropriate written undertaking. The Applicant is not an uneducated or unintelligent man. He knew precisely the terms of such undertaking and the consequences to him should he breach it.
The 30 September 2016 incident at the Coburg Motor Inn
After his arrest and bail on 28 September 2016, the Applicant, for some days, took a room at the Coburg Motor Inn, which is a motel. (He said that this room was arranged for him by the police as he had nowhere else to live.) During his attendance at the motel, he threw a brick through a window in his motel room. He was charged with intentional damage of property. His explanation for this incident, both to the respondent in writing and to the Tribunal, was that he had a hallucination which prompted him to throw the brick. He was arrested at the scene, conveyed to the police station, charged and then subsequently released, yet again on bail.
The Incident at the Mosque in Jeffcott Street, West Melbourne on 4 October 2016
On the evening of 4 October 2016, the Applicant attended at a mosque situated in Jeffcott Street, West Melbourne. A religious service was taking place and the Applicant entered the mosque and proceeded to direct abuse towards people who were praying. He was asked to leave which he did. After leaving the mosque he approached the victim and proceeded to abuse him. The victim was an attendee at the mosque. Without warning, the Applicant punched the victim in the face. After being punched, the victim attempted to run away from the Applicant, but he chased him kicking him in the leg which caused him to fall to the ground. Whilst on the ground, the Applicant stomped on the victim’s chest. The victim said that when struck this way: “it hurt a lot”. The victim then stood up and tried to run to the door of the mosque. The Applicant chased the victim again placing his right hand on his throat preventing him from shouting for assistance. Eventually, several members of the congregation at the mosque assisted the victim.
A few minutes after carrying out the assault, the Applicant returned to the mosque and began praying. The police were called and after speaking to the victim and other worshippers at the mosque, the Applicant was identified and arrested. The entire incident was recorded on CCTV. Still images from that footage were in evidence before the Tribunal. Photographs were also taken of the victim that show a laceration to the ankle, grazed elbow, scratches to the neck and an apparent dislocated shoulder. A statement of the victim was in evidence. He endured considerable pain and suffering. The victim was apparently traumatised by the incident as he thought, amongst other things, that the Applicant wanted to kill him.
The Applicant’s version of the incident varies somewhat from the available evidence. In his statement to the Respondent of 11 December 2017, he stated that he had a hallucination at the mosque that the victim was putting an evil spirit on him. He stated: “because I thought the man had said yes to putting the spirit on me I became angry and pushed him”. In his evidence to the Tribunal, he said that he didn’t remember much of the incident and that he couldn’t recall punching him. He only recalled the victim running to the other side of the road and that he chased him. He said he didn’t think he kicked him, the victim just stumbled; he reiterated that he swore at the victim, asked him a question and that he fell over. He said that the victim told him he had put a spirit on him that got into him. At one stage in his evidence, rather implausibly, he asserted that the victim threatened him. The versions given to the Respondent and the Tribunal do not accord with the evidence from both the statement of the victim and the CCTV footage. It is of concern to the Tribunal, and does not reflect well on the Applicant’s credibility, that he maintains a demonstrably false version of this incident in the face of irrefutable evidence to the contrary. This does not reflect well on his character.
A further consideration of the Applicant’s reasons for his offending
There were several approaches adopted by the Applicant to explain, or in some instances explain away, his offending. In his Statutory Declaration to the Respondent of 11 December 2017, after providing his account of the relevant incidents, he referred to various symptoms of stress and anxiety. On other occasions he referred to being panicked or overwhelmed and on several occasions referred to hallucinations. Sometimes he stated he was hearing voices or had been inflicted with evil spirits. These symptoms were, in some way, identified as mental health issues.
The Statutory Declaration of 11 December 2017, at paragraph 48, states that he no longer has hallucinations. He gave similar evidence from the witness box to the Tribunal at the hearing of this application. Consistently, he stated that he was only a risk to public safety for two or three weeks and then he: “came back to my senses”. “A few weeks later I was no longer a risk.” “I decided I wouldn’t have them in the future. I didn’t do that again and never had another hallucination.” He also relied upon the reports of a Mental Health Nurse from the Immigration Detention Centre healthcare provider “IHMS” (International Health and Medical Services), which were in evidence before the Tribunal as, in effect, confirming that he was no longer suffering from the hallucinations concern. An examination of the report relied upon does not reveal this was quite the case. It states that the Applicant currently denies the existence of such hallucinations and states that he is sleeping okay.
He gave evidence that he still suffers from depression and anxiety but is taking steps to deal with it. He stated that he doesn’t have hallucinations anymore but does have stress anxiety and depression. He conceded that he is taking medication, known as “Mirtazapine”, for this condition. However, there was no other evidence of any actual treatment for this condition.
No current medical report was in evidence from a healthcare professional such as a psychiatrist or psychologist. This is unfortunate and prevents the Tribunal from having the benefit of a professional opinion on the risk of potential recidivism.
In the absence of such a professional opinion, the Tribunal cannot accept the Applicant’s evidence concerning hallucinations one way or the other. That is, either as a means to explain his criminality or his assertion that he has not had any more. It makes the Tribunal’s task of assessing the risk of re-offending all that more difficult.
In the letter from the Australian Red Cross of 1 June 2017, which was in evidence before the Tribunal, there is a brief reference to the Applicant seeking assistance from that organisation for mental health issues he was apparently facing after his release from custody on bail. That organisation apparently provided some assistance. However, it is not stated in that correspondence precisely what such assistance consisted of.
A letter from the Psychiatry Registrar at North Western Mental Health was referred to earlier and noted that the Applicant was suffering from or experiencing, amongst other things, “an acute episode of drug induced psychosis that had residual symptoms”. Further references were made to drug induced psychosis, adjustment disorder with depressive features and cannabis use disorder.
On 4 October 2017, whilst he was in custody, the Applicant signed a document which was an assessment that contained a question requiring him to self-report alcohol or drug use that could be an issue after release. Hand written in that area is the word “cannabis”[9]. The Applicant said he thought that the inclusion of that word was a mistake; that he didn’t have much time to complete the form; and he just wanted to get out of the place. He stated that he misunderstood the form, gave it a look and signed it. He stated it was not his intention to smoke cannabis.
[9] Pages 216-217 of the G-Documents.
Once again, this demonstrated a tendency on the part of the Applicant to simply sign or do anything that he thought might advance his interests. In the context of drug use, he was reluctant to acknowledge that he had experienced a drug induced psychosis. He did not accept the professional assessment in the North Western Mental Health document that was before him. He sought to explain it away by saying that he no longer used any drugs and that he did not consider that he had a psychosis. He gave a disingenuous answer that he thought the Psychiatric Registrar was saying that he simply had these conditions because he had been using cannabis. He even went so far as to say he wasn’t using it when he saw her and only met her on two occasions. In effect, downplaying her professional opinion.
Further, to deflect the nature and effect of his use of drugs including cannabis, apart from reiterating that he had stopped using it long ago, he steadfastly denied that he had used it for very long, nor that it was problematic or that he really had a disorder, issue or dependency on drugs.
He readily conceded that he had smoked cannabis occasionally with his friends commencing in 2016. However, he strenuously denied he had a habit. He stated that he started using cannabis only a few months before his offending in 2016. He indicated that he was smoking it once a week and then only sharing someone else’s. He contended his consumption was minor, taking only 2 g once per week. He also sought to explain this away as being “legal marijuana” that could be purchased from a shop in Sydney Road, or another one in Thomastown. His explanation to try and downplay or diminish the gravity of what he did was to say that he thought Australia was a strict country and if cannabis was being sold it was legal. He stated he was not aware of whether it was legal or illegal. It appears that he had little regard to the legality of his actions. This attitude again demonstrates the unreliability of the evidence given by the Applicant and his tendency to seek to explain away his conduct in a way that does least damage to, or otherwise promotes, his case. It reflects badly on his credibility.
When it was put to him that it would be unlikely that he would be placed on a Community Corrections Order by a County Court Judge that had drug and mental health conditions attached to it, unless there was a serious problem, he sought to deflect the question by saying he really didn’t recall why.
SOME FURTHER OBSERVATIONS ON THE APPLICANT’S EVIDENCE
Some further observations should be made about the Applicant’s evidence before the Tribunal. He displayed an attitude towards giving evidence that did not impress well upon the Tribunal. As noted earlier, the Applicant is an articulate and intelligent man. At all times he was alert to advancing his best interests as he saw them.
On occasions, his evidence would shift depending on what he perceived to be the best response to advance his case. This was particularly so in the course of cross-examination where, from time to time, he was asked the question and, if it were revealed later to be an implausible response, he sought to vary or adjust his evidence to make it more plausible. This shifting of his evidence was pointed out to him in the course of cross-examination, yet it persisted. The other concerning feature of his evidence was a frequent resort to lack of recollection on some matters that just did not ring true. Yet, on other occasions, his memory was particularly sharp and vivid. There was also an inconsistency in several aspects of his evidence that had already been highlighted with facts or otherwise capable of independent verification. Sometimes he sought to explain this lack of memory as being because the events were a long time ago. This had the hallmarks of an invention to conveniently explain away his desire to avoid the consequences of his actions.
Another feature of his evidence was, on occasion, to embellish various matters that he thought would assist him. For instance, in his statutory declaration of 11 December 2017 at paragraph 48, he stated that he had completed many education courses. However, when confronted with the reality in cross-examination, it turned out that he had only completed one diploma level course and one certificate level course. This was notwithstanding the fact he had enrolled in 16 courses during his time in Australia. It will be recalled that he arrived in Australia for the first time on 10 April 2007. He has been on a variety of student and bridging visas since then.
Some of those visas had no-work conditions or alternatively limited his work to 40 hours per fortnight. However, there were periods during this occasion where he worked full-time. There seems to have been an attitude by the Applicant that, with respect to his visa conditions and any work restrictions, he really didn’t care. Once again his attitude to this question was quite flippant and certainly resembled a singular indifference to visa conditions.
CONSIDERATION OF THE OFFENDING AND THE CHARACTER TEST
In the light of the language used in section 501(6)(d) of the Act and the risk of the Applicant engaging in criminal conduct in Australia if he is allowed to remain here, the Respondent put its case concerning the character test in several ways, with considerable persuasion.
Firstly, the Respondent contends that the offending concerned was caused by drug induced psychosis. The North Western Mental Health assessment is relied upon. The Respondent submitted that, on the evidence, the use of synthetic cannabis caused drug induced hallucinations. Therefore, there was an extensive period of cannabis use and certainly much more than the Applicant admitted to. The Respondent contended that the Applicant knew the drugs he was taking were illegal; or alternatively he wilfully shut his eyes to the legality or otherwise of the drugs he was taking and to the subsequent hallucinations that were caused by the use of the drug ingested.
Secondly, the Respondent contended that the Applicant had real mental health issues that significantly contributed to his offending. More likely than not, the same mental health issues exist today and the risk of re-offending is the same today as it was at the time. In support of this argument, it was highlighted that the Applicant has been unable to point to any significant or real change in his condition. This is of course is amplified by the fact that there is no current professional opinion in evidence before the Tribunal from a recognised healthcare professional.
Thirdly, the Respondent contended that there were no hallucinations at all. In support of this submission was the fact that he was searchingly cross-examined and could not provide a rational explanation of their cause (insofar as he was able to do so) and their manifestations. The argument developed was that had the Applicant asserted in his initial contacts with the police that he was suffering from hallucinations, they would have been very unlikely to have granted him bail. He would have been brought before a court. Then quite possibly detained for examination by a suitably qualified mental health professional. Therefore, the issue of hallucinations had subsequently been advanced as a way of diminishing the effect of his offending. It was also asserted that the fact that he gave evidence that they have just stopped, would tend to indicate more likely than not that they were a recent invention.
Quite rightly, the Respondent argues that the threshold to be met in order to establish the risk contemplated by section 501(6)(d) of the Act is a low one. It means more than trivial or remote, but nonetheless it is a low risk. Therefore, based upon the evidence and the material that is before the Tribunal that threshold has been well and truly crossed.
There are several reasons that the Tribunal accepts in reaching this conclusion. These reasons are summarised in no particular order of priority. Despite the way the Applicant sought to portray his offending, particularly over a period of a short few months in 2016, there has been nonetheless, a significant pattern of offending that extends over several years from a relatively early time after his arrival in Australia.
The drink-driving offences cannot be ignored. Drink-driving can lead to serious motor vehicle accidents causing injury and death. Australia has had a long tradition of being at the forefront of combating drink-driving and taking other road safety measures. The Applicant appeared to downplay the significance of his drink‑driving, unlicensed driving and the breach of interlock conditions. The fact that there are two convictions for drink-driving indicates that he did not learn his lesson the first time. The duration of his disqualification was lengthy and the imposition of a interlock condition demonstrates the gravity of his offending as viewed by the sentencing court or authority.
He drove twice without a license or when he was otherwise disqualified from so driving. This shows a disregard for the rule of law in Australia. Not to mention other motorists in the community.
His offending that was dealt with on appeal by Judge Hannan in the County Court of Victoria in November 2017 included offending that was described as being “really significant violence.”
The Applicant’s offending occurred whilst he held a bridging visa.
On two occasions he engaged in acts of violence. On one occasion the act of violence was random and directed against someone going about their business in a place of worship. He caused significant pain, suffering and injury to that innocent victim. All Australians have a right to worship without interference, let alone random violent interference.
On two occasions the Applicant breached terms of bail. His attempts to either deny or deflect his knowledge of the conditions of the bail cannot be accepted by the Tribunal. Again it is evidence of at the least a casual (if not wilful) disregard for the rule of law in Australia.
In his dealings with authority the Applicant has on several occasions made false, misleading or incorrect statements on official documents. His attempts to explain these away showed a contumelious disregard for authority, if not the rule of law.
He was prepared to proffer a resume that he knew contained false information that he had worked as a taxi driver when he of course was disqualified from driving throughout a significant portion of the time referred to in that document.

He was prepared to make a statutory declaration that he knew to contain incorrect information.
He was prepared to, or didn’t really care whether he breached the working conditions of visas that he held over time.
His evidence, as observed above, was unreliable in several respects. His attitude towards the Application before the Tribunal raises concerns as to his understanding of the severity of the matter and his offending.
The Tribunal accepts that the Applicant suffered from drug induced psychosis. The North Western Mental Health assessment contains the opinion of a mental health care professional. It is consistent with the use of drugs that have been identified in the course of the evidence. The Tribunal does not accept the evidence given by the Applicant concerning his drug taking and considers that it was far more extensive than he was prepared to admit. In the event that he is released into the community, there is a real risk that he will relapse into drug taking. This is a risk that he recognised himself when he referred to the term “cannabis” in the assessment form completed whilst he was in custody and referred to earlier in these reasons. However, he appears not to have come to terms with the fact and consequences of his drug taking.
The Tribunal also agrees that the Applicant is suffering from significant mental health issues. It finds that such mental health issues still exist and the risk of re-offending is the same today as it was in 2016 when the pattern of behaviour referred to previously took place, including the violent episodes and breaches of bail. (Not to mention the commission of offences whilst on bail.) As to the risk of re-offending, the Applicant’s failure to admit, let alone address, these mental health conditions, demonstrates that there is a real risk that the Applicant will engage in criminal conduct in the future if he is released into the community.
For these reasons, the Tribunal finds that in the event the Applicant were allowed to remain in Australia, there is a real risk that he would engage in criminal conduct within the meaning of section 501(6)(d) of the Act. Therefore, he is unable to pass the character test.
THE DISCRETION UNDER SECTION 501 (1) OF THE ACT
It is necessary to consider the contents of Ministerial Direction number 65.
The contents of the Ministerial Direction are referred to in their entirety for their full force and effect. The “Preamble” in clause 6 of the Ministerial Direction provides a statement of “Principles” that guide a decision-makers approach to its decision. Several of those Principles warrant mention. They are as follows:
(a)The Australian community expects that entry should be refused to non-citizens if they commit serious crimes in Australia;
(b)A non-citizen who has committed a serious crime including violence should generally expect to be denied the privilege of coming to, Australia;
(c)In some circumstances, criminal offending or other conduct, and the harm that would be caused if they 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 refusing the visa;
(d)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; and
(e)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
The first matters to consider are what are known as the “Primary Considerations” applicable to visa Applicants. Clause 8(4) of the Ministerial Direction states that primary considerations should generally be given greater weight than other considerations.
The Primary Considerations that must be taken into account by a decision-maker are defined in clause 11 of the Ministerial Direction as:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian Community.
Clause 11.1 (1): “Protection of the Australian community” provides, amongst other things, that there is a low tolerance for visa Applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to the following:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
NATURE AND SERIOUSNESS OF THE APPLICANT’S CONDUCT
The matters canvassed previously in these reasons under the headings “The Applicant’s History of Offending”, “A Further Consideration of the Applicant’s reasons for his offending”, “Some Further Observations on the Applicant’s Evidence” and “Consideration of the Offending and the Character Test” are referred to and repeated. It was serious offending (so described by the sentencing Judge) and in some cases involved acts of violence. The Applicant demonstrated in the witness box that he has not gained an insight into the seriousness of his offending and other conduct. Overall, it is of concern to the Tribunal that his offending has reflected a disregard for the rule of law and it is a level of indifference that cannot be excused. There has almost been a degree of recklessness towards the well-being of the Australian community demonstrated by the Applicant.
Overall, taking into account the nature of the offences, the sentence, the comments of the sentencing judge together with the guidance and principles articulated in Ministerial Direction Number 65, the conduct of the Applicant and his offending weighs heavily against granting a visa to the Applicant.
THE RISK TO THE AUSTRALIAN COMMUNITY SHOULD FURTHER OFFENCES BE COMMITTED
Once again, the consideration above concerning the offending and risks of re-offending are referred to and repeated. The nature of the evidence given by the Applicant and his lack of credibility causes the Tribunal serious concerns about the risk of re-offending. The probability of it appears to be high. If this offending occurs during a mental health episode, whilst under the influence of drugs or during the course of a drug induced psychosis, the risk of repeat acts of violence must be comparatively high.
The contradiction in the Applicant’s evidence concerning hallucinations, drug taking, drug induced psychosis and mental health issues demonstrated a complete lack of insight into what caused his offending. There was a failure on the part of the Applicant to take responsibility for it. He has no insight into the serious nature of his conduct in its totality. The notion that in some way all his hallucinations had suddenly stopped and that he had come to his senses, amongst other things, lacks credibility.
The approach that the Applicant adopted towards his problems create real concerns about whether he would be prepared to undertake rehabilitation or treatment outside of the supervised environment of the custodial system, either in prison or immigration detention. His tendency to ignore lawful directions, such as bail conditions, does not give the Tribunal confidence. There is a high risk of him relapsing into offending or engaging in other unacceptable conduct. Therefore, the Tribunal finds in these circumstances the risk of recidivism is very high.
In considering whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower if the seriousness of the potential harm increases. Some conduct and harm that if caused, is so serious that any risk of it being repeated is unacceptable. The Tribunal considers that the risk of re-offending is high.
The attitude adopted by the Applicant, both to his offending and in dealing with authority, has shown a degree of recklessness towards the well-being of the Australian community. His offending, in terms of the violence and the road traffic matters, has the potential to endanger lives in the Australian community. Given the nature and seriousness of his past conduct, and the real risk that he will commit further offences in the future as a result of drug use and possible mental health issues, the Tribunal finds that the consideration of the protection of the Australian community weighs heavily in favour of refusing to grant a visa to him.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Applicant does not have any minor children. Therefore, this consideration does not apply.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY.
Clause 11.3 of the Ministerial Direction “Expectations of the Australian Community” provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. 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 or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
As noted earlier in these reasons, the “Principles” contained in the preamble at paragraph 6.3 of the Ministerial Direction direct a decision-maker to consider the expectations of the Australian community. It is prescribed that the Australian community expects that the Government can and should refuse entry to a non-citizen if they commit serious crimes in Australia or elsewhere.
The views of the Australian community that should be taken into account by decision‑makers are those members of the community who are informed, reasonable, fair‑minded and mature.[10] Also, as observed by Deputy President Block in Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs, those expectations 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 was only prepared to consider the punitive aspects of the power under section 501.[11]
[10] See Re Do v Minister for Immigration and Border Protection [2016] AATA 390 at [23] per Deputy President McCabe.
[11] [2003] AATA 1336 at [36].
The Tribunal considers that the Australian community, comprising members with knowledge of all of the Applicant’s circumstances, and who are informed, reasonable, fair‑minded and mature, would expect that the Applicant should not be granted a visa.
The Applicant’s conduct, viewed in its totality, in all circumstances, in committing serious crimes whilst being the holder of bridging visas, weighs heavily against him.
All of the matters referred to above under the heading “Consideration of the Offending and the Character Test” are referred to and repeated. In the context of the language used in clause 11.3 of the Ministerial Direction, in addition to the breaches of trust that have been identified on the part of the Applicant, there is a continuing and unacceptable risk that the Applicant will continue to breach this trust or will do so in the future. It is not only the Applicant’s offending that causes concern. The tendency demonstrated by him in his dealings with authority as previously described, together with his approach to the application before the Tribunal as revealed by his evidence in the witness box, overall do not give one confidence that in the future he would adhere to the trust that the Australian community would repose in him if he were permitted to remain in Australia. The character concerns demonstrated in the course of the hearing before the Tribunal are real and weigh heavily against him.
OTHER CONSIDERATIONS – INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Ministerial Direction Number 65 provides for other considerations to be taken into account by a decision-maker. The only other consideration which was raised before the Tribunal was that of “International non-refoulement obligations”.
The Respondent concedes that non-refoulement obligations are owed to the Applicant. However, it contended that the existence of such an obligation does not preclude refusal of the non-citizen’s visa application. Additionally, it contended that when one weighs such an obligation against the offending of the Applicant and considers the gravity of such offending together with the other primary considerations in this matter, they outweigh any non-refoulement obligation that may be owed to him.
The foundation of the claim by the Applicant to a non-refoulement obligation arises from his conversion from Sikhism to Islam in 2010. Extensive details concerning these facts and findings regarding them can be found in the decision of the Migration & Refugee Division of this Tribunal made on 18 February 2016. The contents of that “Decision Record” are referred to in their entirety for their full force and effect. That decision determined that, on the grounds of his religious conversation, there is a real chance of harm to the Applicant should he be returned to India. Additionally, in evidence before the Tribunal was a letter dated 3 May 2018 from the Asylum Seeker Resource Centre which is also referred to in its entirety.
When regard is had to non-refoulement obligations owed to the Applicant, a decision‑maker, such as the Tribunal in this application, must also have regard to the legal consequences that flow from any decision to refuse a protection visa. Given the provisions of sections 197C and 198 of the Act, those legal consequences are that if the application for a visa made by the Applicant is refused, an officer is obliged to remove him from Australia as soon as reasonably practicable. Such an officer must undertake the removal irrespective of the non-refoulement obligation owed to him.[12]
[12] The decisions of DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 and ReBHKM v Minister for Immigration and Border Protection [2018] AATA 3 are referred to.
The legal consequence of a decision to refuse a visa will be that the Applicant would be returned to India. There is a risk of harm if he is so returned to India by reason of his religious conversion.[13]
[13] In the letter from the Asylum Seeker Resource Centre dated 3 May 2018, it was also contended that the Applicant would be at risk of indefinite detention in Australia if the Applicant was refused a visa. The decisions of DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 and Re BHKM v Minister for Immigration and Border Protection [2018] AATA 3 hold that this is not the case. Once a visa application is refused, section 197C requires the applicant to be removed notwithstanding that Australia may have been found to owe non-refoulement obligations in respect of him.
Considering the evidence that has been adduced before the Tribunal on this question of the non-refoulement obligation owed to the Applicant, it does weigh to some considerable degree in favour of setting aside the reviewable decision. However, the question that needs to be considered is whether this finding in relation to non-refoulement, described in the Ministerial Direction as an “other” consideration, outweighs the Tribunal’s strong findings in relation to the primary considerations which have been detailed earlier in these reasons.
Given the gravity and extent of the matters found with respect to the primary considerations, the Tribunal is unable to find that the non-refoulement obligation outweighs the primary considerations. The Tribunal acknowledges that there is a risk of harm to the Applicant if he returns to India. However, the Tribunal needs to weigh these safety concerns with the very strong concerns outlined above in relation to the seriousness of the Applicant’s crimes, the risk of further offending and what this would mean for the Australian community. These were strong findings based upon the evidence before the Tribunal.
CONCLUSION
The Applicant fails the character test because the Tribunal finds there is a real risk he would engage in criminal conduct within the meaning of section 501(6)(d) of the Act.
Having failed the character test the primary considerations of the nature and seriousness of the Applicant’s conduct, the risk to the Australian community should further offences be committed and the expectations of the Australian community, substantially outweigh any non-refoulement obligation owed to him.
Accordingly, the Tribunal affirms the decision of the Respondent’s delegate dated 28 June 2018 refusing an application by the Applicant for a Protection (Class XA) visa.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

......[sgd]........................................
Associate
Dated: 2 October 2018

Date(s) of hearing: 19 September 2018

Applicant: In person

Solicitors for the Respondent: Ms Ashlee Briffa
Australian Government Solicitor

[2018] AATA 3681

2 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Standing

Date(s) of hearing:	19 September 2018
Applicant:	In person
Solicitors for the Respondent:	Ms Ashlee Briffa Australian Government Solicitor