BLSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4177

BLSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4177 (15 November 2021)

Division:GENERAL DIVISION

File Number:          2018/3963

Re:BLSL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:15 November 2021

Place:Melbourne

The decision under review is set aside and substituted with the decision that the Tribunal exercises the discretion in s 501(1) of the Migration Act 1958 (Cth) not to refuse to grant the Applicant a Protection (Class XA) Visa.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS        
MIGRATION

– visa refusal – citizen of India – Protection (Class XA) Visa – failure to pass good character test – exercise of discretion – Ministerial Direction No. 90 applied – reviewable decision set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

Migration Regulations 1994 (Cth)

CASES

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
BLSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re [2018] AATA 3681
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
DOB18 v Minister for Home Affairs [2018] FCA 1523
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
FTJ18 v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1775
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hughes v The Queen (2017) 263 CLR 338
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 191 CLR 559
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358  
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Murphy v Minister for Home Affairs [2018] FCA 1924
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
PQSM v Minister for Home Affairs [2019] FCA 1540
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, DFAT Country Information Report India, Report (10 December 2020)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

15 November 2021

INTRODUCTION

1. The Applicant has asked the Tribunal to review the decision by a delegate of the Minister to refuse his application for a Protection (Class XA) Visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act).

2. The hearing was held on 3, 4 and 5 November 2021. The Applicant was represented by Ms Pathan of counsel instructed by the Asylum Seeker Resource Centre (ASRC). The Minister was represented by Mr Sypott from the Australian Government Solicitor.

3. For the following reasons the Tribunal sets aside the reviewable decision.

   BACKGROUND

4. The Applicant is a 35-year-old citizen of India[1] who arrived in Australia in April 2007 on a student visa.[2] His parents and a younger brother continue to live in India[3] and he has no relatives in Australia. He has returned to India once in 2007.[4]

   [1] Exhibit R1, 27.

   [2] Ibid, 56.

   [3] Ibid, 21-22; 37.

   [4] Ibid, 39 [Q64].

5. While living in Australia the Applicant undertook English language training and various vocational courses.[5] He has worked consistently since arriving here, including in a factory, as a landscaper, taxi driver, and in door-to-door sales.[6]

   [5] Ibid, 31; 56 [7]; 103 [31]; 254; 387 [38].

   [6] Ibid, 389-391.

6. The Applicant said he ‘met some Muslim guys’ in 2010 who impressed him and within six months he converted from Sikhism to Islam.[7] This decision caused a deep rift with his family in India that persists to the present day.[8]

   [7] Ibid, 56.

   [8] Ibid, 57 [20]-[27]; 68 [7]; Exhibit A1, 1-2 [13]-[14].

7. In early 2011 the Applicant claims to have married a New Zealand citizen he met online,[9] but said the relationship broke down within two months[10] and divorce followed in 2014.[11] He has not subsequently re-partnered.

   [9] Exhibit R1, 56 [14]; 364 [16].

   [10] Ibid, 28 [Q15]; 56 [14]; 363.

   [11] Exhibit A1, 2 [16].

8. In May 2013 the Applicant lodged an application for a Protection Visa based on fears of harm from his own family and others in India because of his religious conversion.[12] This application was refused in January 2015.[13] The Applicant successfully appealed this decision to the Migration and Refugee Division of the Tribunal in February 2016, which remitted the application with a direction that he satisfies s 36(2)(a) of the Act.[14] It is not contested in the present matter that the Applicant continues to be owed protection and non-refoulement obligations.

   [12] Exhibit R1, 17.

   [13] Ibid, 93 [2].

   [14] Ibid, 43-55.

9. The Applicant has not been law-abiding while living in Australia. His convictions include drink driving in 2010 and 2012, and later offences involving violence or threatened violence, breaches of conditional liberty, dishonesty, and property damage.[15] Following arrest in October 2016, the Applicant was briefly held on remand before being released on bail.[16] He lived in the community under conditional liberty provisions for approximately nine months until his Bridging Visa was cancelled on 3 August 2017.[17] He was taken into immigration detention[18] but later in August 2017, was convicted of multiple offences in the Melbourne Magistrates’ Court, for which he received an aggregate sentence of five months imprisonment. This caused him to be transferred to prison. He appealed this sentence and in late 2017 the Melbourne County Court upheld his appeal and instead imposed a 12-month Community Corrections Order (CCO).[19] He was subsequently returned to immigration detention where he has remained for the last four years.[20]

   [15] Ibid, 15-16.

   [16] Ibid, 93.

   [17] Ibid, 94 [5]; 235 [30].

   [18] Ibid, 73 [44].

   [19] Ibid, 15; 101-104; 241-242; 244.

   [20] Ibid, 94 [9].

10. On 15 March 2018, the Applicant was sent a Notice of Intention to Consider Refusal of his visa application.[21] He responded to the Notice with the assistance of the ASRC.[22]

    [21] Ibid, 90-92.

    [22] Ibid, 93.

11. On 28 June 2018, a delegate of the Minister refused the visa application (refusal decision).[23] The Applicant subsequently appealed the refusal decision to the Tribunal. On 2 October 2018, the Tribunal, differently constituted, affirmed the refusal decision (first Tribunal hearing).[24] On 30 October 2019, a single judge of the Federal Court of Australia affirmed the Tribunal’s decision.[25] On 12 May 2021, the Full Court of the Federal Court of Australia allowed the Applicant’s appeal by consent and remitted the matter for rehearing,[26] giving rise to the current proceeding.

    LEGISLATIVE FRAMEWORK   

    [23] Ibid, 13.

    [24] Re BLSL and Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs [2018] AATA 3681.

    [25] FTJ18 v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1775.

    [26] Exhibit R1, 490-492.

12. Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions.

13. Section 501(1) of the Act, read in conjunction with s 501(6)(d)(i), provides the Minister with a discretion to refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test. Section 501(6)(d)(i) states that a person does not pass the character test if ‘in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia’.

14. If an applicant fails the character test, the Tribunal must then determine whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.[27] Guidance in exercising the discretion is found in Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).

    [27] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].

    The Direction

15. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Tribunal must comply with the Direction, which came into effect on 15 April 2021.[28]

    [28] Section 499(2A) of the Act.

16. The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states:

    …Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.   

17. The Direction provides the following principles at cl 5.2 as a framework within which decision-makers should approach their task of deciding whether to refuse a non-citizen’s visa under s 501:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens 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 by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

18. Annex A to the Direction provides both general and specific guidance to decision-makers in determining whether a person passes the character test. Section 1 of Annex A provides:

    (1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test …

    (2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.

19. Clause 6 of the Direction provides that a decision-maker must take into account the considerations identified in cls 8 and 9 of the Direction, where relevant to the decision.

20. In the event a person does not pass the character test, the following primary considerations at cl 8 of the Direction must be applied to the specific circumstances of their case:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the best interests of minor children in Australia;

    (d)expectations of the Australian community.

21. Clause 9(1) of the Direction requires that other considerations must be taken into account where relevant. These include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)     strength, nature and duration of ties to Australia;

    (ii)    impact on Australian business interests.

22. Clause 7(1) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.

23. Clause 7(2) of the Direction provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman[29] regarding a previous equivalent direction:

    …Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    [29] Suleimanv Minister for Immigration and Border Protection (2018) 74 AAR 545, [23] (Colman J).

24. In Jagroop,[30] the Court held that:

    [57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…

    …

    [78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

    [30] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57] and [78].

25. Annex A, s 2 of the Direction is titled ‘Application of the character test’. Clauses 6 and 6.1 relevantly state:

    6         Risk in regards to future conduct (section 501(6)(d))

    (1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.

    (2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

    (3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

    6.1      Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

    (1)       A person does not pass the character test if, in the event that the    person were allowed to enter or remain in Australia, there is a risk   that the person will engage in criminal conduct in Australia.

    (2)       The reference to criminal conduct must be read as requiring that    there is a risk of the person engaging in conduct for which a criminal   conviction could be recorded.

    ISSUES TO BE DETERMINED

26. The issues in this matter are:

    (a)Whether the Applicant fails the character test under s 501(6)(d)(i) of the Act; and

    (b)If so, whether the discretion should be exercised to refuse the visa, after applying the relevant primary and other considerations in the Direction to the specific circumstances of this case.

    EVIDENCE 

    Documentary evidence

27. The following documents were taken into evidence:

    (a)Documents lodged by the Respondent numbering 515 pages;[31]

    (b)Medical records from the International Health and Medical Services (IHMS);[32]

    (c)Applicant’s six-page statement dated 23 September 2021, attached to which are four certificates of course completion dated between August and September 2021 and a conversion certificate from the Islamic Council of Victoria dated 8 May 2013;[33]

    (d)One-page letter of support from a friend of the Applicant dated 22 October 2021;[34]

    (e)Three-page statement from another friend of the Applicant dated 25 October 2021;[35]

    (f)One-page letter of support from another friend of the Applicant dated 28 October 2021;[36]

    (g)One-page letter of support from a former employer of the Applicant dated 29 October 2021;[37]

    (h)Medico-Legal Report and Supplementary Report of Dr Jai Nathani dated 18 September 2021 and 25 October 2021, with accompanying Letters of Instruction from the ASRC;[38] and

    (i)Response to Freedom of Information Request FA 21/05/00505 from the Department of Home Affairs.[39]  

    [31] Exhibit R1.

    [32] Exhibit R2. IHMS provides medical services within Australia’s immigration detention network.

    [33] Exhibit A1.

    [34] Exhibit A2.

    [35] Exhibit A3.

    [36] Exhibit A4.

    [37] Exhibit A5.

    [38] Exhibit A6.

    [39] Exhibit A7.

    Applicant’s evidence

28. The Applicant is fluent in English and Hindi. In his oral evidence he adopted his statement as true and correct and made comprehensive submissions. These focussed on remorse for past offending, undertaking to remain law-abiding and abstinent from illicit drugs and alcohol if released, and fear of removal to India.

    Family history

29. The Applicant said he is not in regular contact with his family in India, claiming they disowned him and made threats against him because of his religious conversion. This caused him to feel ‘alone and abandoned in the world.’ He referred to depression from around 2014 because of his family’s continuing unwillingness to accept his religious conversion or provide him with any financial or emotional support. The refusal of his Protection Visa application in 2015 only added to his depression and he referred to suicidal ideation for which he sought professional help.[40]

    [40] Ibid, 47 [20]; 48 [24]; 68 [7]-[9].

    Offending, remorse, rehabilitation, and recidivism risk

1. The Applicant said he completed automotive and business studies in Australia,[41] and enjoyed consistent employment.[42] He referred to a period of relative stability when living with a close friend from 2010 until late 2015. After that friend returned to Pakistan for a prolonged period, however, the Applicant said he moved to more affordable shared accommodation where he started smoking synthetic cannabis with some of the occupants. A summary of the Applicant’s evidence relating to his offending and its causes follows:

   [41] Exhibit R1, 31.

   [42] Ibid, 389.

   (a)He drank alcohol until 2017 about every two to three months. He was convicted of drink driving in 2010 after attending a friend’s birthday party in Geelong, causing his licence to be suspended for a year and an interlock condition imposed. He had a second drink-driving conviction in 2012 after separating from his wife. He claimed to have been taken out by a supportive friend. After the friend’s car broke down, the Applicant said he fell asleep in the vehicle while his friend went to get assistance. He claimed that Police found him in the car with the keys in it and the heater running and asked him to provide a breath test, which he refused. This caused his licence to again be suspended. The Applicant said he was also caught driving while disqualified in 2016 after making a bad decision to recover his phone charger from a friend’s place, which he needed because of on-call work requirements. This resulted in convictions for unlicenced driving and breach of interlock conditions. The friend’s car he was driving was unregistered and the Applicant said he was unaware it had incorrect numberplates, which resulted in further charges. The Applicant said he was not thinking clearly at this time because of regular synthetic cannabis use;

   (b)The Applicant said the only drug he ever took was synthetic cannabis, which he claimed to have used for ‘more than four to five months’ and about three to four times a week, which he likened to ‘self-medication.’ He now realised this only exacerbated his mental health issues and caused him to ‘think negatively about [his] situation’. The Applicant said synthetic cannabis increased his anger and agitation, leaving him ‘delusional’ and ‘not in a good state of mind’. He recalled hallucinating and said he remembered these past events ‘all together,’ but his memory about the details is ‘blurry’;

   (c)The Applicant described a fight he had with a friend at their share house as resulting from a confluence of events. His bicycle, which was his only form of transportation, was stolen and he suspected one of the share house residents was the culprit. His friend at the share house also told him unexpectedly that he had to share his room with someone else, which was contrary to the agreement the Applicant claimed to have with the homeowner. This unexpected news made him feel angry and caused him to ‘lash out’ at the friend. This included hitting him with a belt and using a butter knife from the kitchen in their struggle, causing shallow cuts to his friend’s palm.[43] The Applicant said it was not his intention to hurt his friend but scare him. He claimed to have armed himself in part because he thought another share house resident might side with the friend and outnumber him. He said the friend he attacked called the police, resulting in the Applicant’s arrest. The Applicant said he accepted the conduct attributed to him in the police reports and felt ashamed and remorseful. He said the victim subsequently forgave him and provided supportive evidence for his court appearance. When asked by Mr Sypott about his evidence at the previous hearing denying some of this conduct, the Applicant said he genuinely could not recall some of the things attributed to him but now accepted responsibility: ‘I was convicted and accept the blame’;

   (d)When asked about the reports of hallucinations during the period of his drug use and offending, the Applicant recalled it was like ‘my mind talking to myself and hearing myself talking in my head…like a struggle or quarrel…’. He said his state of mind led to ‘poor choices’ like returning to the share house to recover his belongings, in breach of bail conditions. He also broke a window at the motel he was staying at because of ‘bad hallucinations’ and did not ‘keep up with police appointments’;    

   (e)After being evicted from his home following the fight with his friend, he went to the mosque in a confused state to pray and find peace, but claimed he was ‘still agitated’ and ‘lashed out at an innocent guy for no reason’. People from the mosque intervened and police again arrested him. While on remand he continued to feel agitated and confused for about two weeks, but then ‘started coming to [his] senses.’ He ‘felt really stupid’ about his actions and committed never to use synthetic cannabis again;

   (f)The Applicant said he stopped using synthetic cannabis in September 2016 and after being released on bail in November 2016 sought further mental health assistance. He reconnected with the friend he lived with until 2015 and focussed on living a better life. He now recognises that drugs and alcohol are not for him and have destroyed five years of his life;

   (g)The Applicant referred to several rehabilitative courses undertaken while in immigration detention[44] and gave examples of lessons learned and how he would apply these to prevent relapse or reoffending. The Applicant agreed that while in immigration detention he had not attended all consultations with a mental health nurse, choosing instead to make his own appointments if necessary. He had spoken with an IHMS general practitioner about reducing his reliance on an anti-depression medication because of side-effects like weight gain. He now felt better able in managing his stress and sleep issues through exercise. The Applicant confirmed he had received two doses of a Coronavirus vaccine in detention;

   (h)The Applicant was asked about several IHMS records dating back to 2017 but could not recall some of the comments attributed to him[45] due to the passage of time. The hallucinations he previously experienced while taking synthetic cannabis had ceased and some ‘bad panic attacks’ he experienced early in his detention had not reoccurred. He still felt depressed about his family’s attitude to his religious conversion and the prospect of his four-year stay in immigration detention being indefinitely prolonged. But he now felt better able to deal with this and tried to remain positive by focussing on the prospect of release and a better life; and

   (i)The Applicant accepted he tried to minimise his conduct at the first Tribunal hearing when unrepresented. He said this was a mistake for which he blamed only himself. He now fully accepted responsibility for his past conduct without equivocation, despite not being able to remember everything he had done. 

   [43] Ibid, 137.

   [44] Exhibit A1.

   [45] Exhibit R2, 29.

   Protective factors and future aspirations

2. If released, the Applicant said he intends living with the supportive friend he previously resided with between 2010 and 2015. He will also take up one of the employment offers and seek mental health support if needed. He stated that will not re-engage with the house mates he previously smoked synthetic cannabis with or drink alcohol again. He referred to the maturity he had gained since 2016, which made him realise how precious freedom was and strengthened his commitment to live a better life. When asked about the possibility of ever using synthetic cannabis again, he replied:

   It has cost me the prime of my life. I realise the true value of freedom and won’t make that mistake again – I’ve really learned my lesson at a very high cost.

   Evidence of friends

3. The Tribunal has considered:

   (a)A letter dated 8 April 2018 from a former housemate of the Applicant who said he had (then) known him for ‘6-7 years’.[46] It is unclear whether this person is from the share house where the Applicant said his use of synthetic cannabis commenced and the author was not called to give evidence. Given the dated nature of this letter, inability to test its contents during cross-examination, and no reference being made to the letter during the hearing, no weight is placed on it;

   [46] Exhibit R1, 112.

   (b)A letter dated 1 May 2018 from a friend of the Applicant who claims to have known him since 2008 when they attended mosque together.[47] The author claims to be a business owner who can employ the Applicant if released. No reference is made in the letter to the Applicant’s offending and the author was not called to give evidence. Given the dated nature of this letter, lack of reference to the Applicant’s offending, inability to test its contents through cross-examination, and no reference being made to the letter during the hearing, no weight is placed on it;

   [47] Ibid, 113-114.

   (c)An email dated 28 March 2018, from a former employer claiming he previously employed the Applicant as a general labourer and ‘will hire him with no hesitation upon his return’.[48] The same employer provided a letter dated 29 October 2021 and gave oral evidence at the hearing that can be summarised as follows:

   [48] Ibid 106.

   (i)The witness adopted his statement as true and correct.[49] He runs recruitment, gardening, and cleaning businesses, by hiring contractors to work on projects for his clients. He currently has 19 people working for him;

   [49] Exhibit A5.

   (ii)The witness previously employed the Applicant on a landscaping project in either 2016 or 2017 and immediately thought he was ‘a keeper’ and a ‘standout’ because he ‘listened and followed instructions’; 

   (iii)The witness is aware of the Applicant’s mental health issues and offending and had most recently spoken with him on the telephone a week ago. He would still employ the Applicant ‘if he can prove to me he’s put everything behind him and comes back with the same focus’; and

   (iv)The witness described the process he would apply in re-employing the Applicant, which included mentoring him on site and making enquiries about the Applicant’s ability to hold a driver’s licence.

   (d)A letter of support from a person stating he has been friends with the Applicant for approximately 11 years and they lived together on and off for approximately five years between 2010 and 2015.[50] The witness said he sends the Applicant money at times to support him. If released he will provide the Applicant with accommodation and other emotional and practical support, directed at helping him remain abstinent from alcohol and cannabis. This includes helping him ‘find a psychologist [and to] access therapy…’;

   [50] Exhibit A2.

   (e)Three-page statement dated 25 October 2021 from a person who has been friends with the Applicant for ‘around 13 or 14 years.’[51] This witness has previously provided statements in support of the Applicant.[52] The witness gave oral evidence at the hearing and was cross-examined. His evidence can be summarised as follows:

   (i)The witness adopted his statement as true and correct;

   (ii)He has been friends with the Applicant since 2008 and they lived in the same house between 2010 and 2015, including during the period of the Applicant’s conversion to Islam;

   (iii)The witness said he lived overseas during the period of the Applicant’s cannabis use and offending but continues to support him. They speak by telephone weekly and he has noted improvements in the Applicant’s mental health, motivation, and outlook on life;

   (iv)The witness will provide the Applicant with rent-free accommodation and other practical support like driving him to appointments. Illicit drugs, alcohol, and smoking are not permitted in the witness’s house, which will assist the Applicant in remaining abstinent if released. He has made the accommodation offer conditional on the Applicant undertaking not to consume alcohol or illicit drugs again and will not allow him to live in the house if he does; and

   (v)The witness said he would be upset if the Applicant could not remain in Australia and felt he deserved ‘another chance’.

   (f)Letter of support dated 28 October 2021 from a person who is a company director, and whose unchallenged evidence is that he can provide the Applicant with employment as a general labourer if released.[53]

   Expert evidence

   [51] Exhibit A3.

   [52] Exhibit R1, 115.

   [53] Exhibit A4.

   Report of Dr Nathani

4. The Tribunal has considered the Medico-Legal Report of psychiatrist Dr Jai Nathani dated 18 September 2021 numbering 44 pages, with accompanying Letter of Instruction from the ASRC dated 19 August 2021.[54] Dr Nathani assessed the Applicant via videoconference on 11 September 2021 for approximately two hours,[55] and drew on supporting documents provided to him. Dr Nathani concluded that:[56]

   [54] Exhibit A6.

   [55] Ibid, 6 [2.5].

   [56] Ibid, 7-8.

   (a)The Applicant committed violent and non-violent offences during a 10-day period in 2016 in the context of heavy synthetic cannabis use. There are no known episodes of violence outside of this period;

   (b)Factors contributing to the Applicant’s offending include traumatic brain injury in 2015, cannabis use and psychosis, as well as the psychological factors of searching for a sense of belonging, crossing a threshold as explained in the Vulnerability-Stress Model as well as intra-psychic and interpersonal dynamics as explained by Malan’s Triangle of Conflict and Triangle of Persons;

   (c)Although the Applicant has a history of a Substance/ Medication-Induced Psychotic Disorder (Cannabis), this is ‘currently in full remission’;

   (d)In the absence of cannabis use, the Applicant’s risk of violent or non-violent reoffending is low;[57]

   (e)The Applicant’s risk of relapsing into alcohol or cannabis use, or into a Substance/ Medication-Induced Psychotic Disorder (Cannabis) is low;

   (f)The Applicant does not currently meet the criteria for a mental disorder and his levels of distress are not disproportionate to stressors arising from detention and the prospect of deportation;

   (g)In the absence of any current diagnosis, no treatments are recommended, however, if the Applicant wishes to continue taking Mirtazapine as an antidepressant, he should do so daily rather than in the way he currently does, or cease taking it and ‘he will then need to be monitored for the development of depressive symptoms’. Notwithstanding the absence of a formal diagnosis, supportive psychotherapy is recommended to help the Applicant manage feelings of distress and hopelessness;

   (h)In the event of deportation, the Applicant is at high risk of developing a Major Depressive Disorder, which may include suicidal ideation or attempts;

   (i)In the event of ongoing detention, the Applicant is at high risk of developing an Adjustment Disorder with depressed mood. His risk of developing a Major Depressive Disorder in detention is in the low range in the short-term, given he has not developed the disorder to date, but is high in the longer term; and

   (j)The Applicant would benefit from assistance in making plans to secure stable accommodation, finances, and employment prior to being released from detention and into the community.

   [57] Ibid, 31-39. Dr Nathani applied the Historical Clinical Risk-20 (HCR-2) methodology.

5. In a supplementary report dated 25 October 2021 as requested by the ASRC, Dr Nathani responded to questions regarding the Applicant’s previous hallucinations, impact on memory from synthetic cannabis use, and compliance with medications and appointments. Dr Nathani’s responses can be summarised as follows:

   (a)Impact on memory during hallucinations: The experience of perceptual disturbance such as auditory hallucinations ‘will impair the memory of the psychotic episode’ by disrupting the perceptual input and interfering with the conversion of sensory memory to short-term memory and distorting its storage as long-term memory;

   (b)Impact of synthetic cannabis use on memory: The use of this substance, which has a high tetrahydrocannabinol (THC) content compared to organic cannabis, ‘is very likely to have negatively impacted’ the Applicant’s memory.[58] This follows from his daily cannabis use for a period of months, which may have caused enduring structural changes to parts of the brain correlating with neurocognitive performance and memory; and

   (c)Compliance with medications and appointment attendance. Dr Nathani was asked about a reference in his primary report to ‘recurrent history of loss to follow-up and non-adherence to medications,’ and how this impacts his risk assessment. Dr Nathani said this related to the Applicant’s use of the antidepressant Mirtazapine, which the Applicant had decided to cease for symptom relief, which Dr Nathani said was supported by an IHMS general practitioner. In terms of failing to attend follow-up appointments, Dr Nathani said the Applicant did not see a need for follow-up given his psychosis had resolved and he was abstinent from substances. Dr Nathani said a failure to attend appointments in this context ‘does not predict [the Applicant’s] level of engagement with psychiatric services in the future’ if this was indicated, and ‘does not significantly increase the risk profile’.

   [58] Citing Celia Imhoff, ‘Long-Term Outcomes of Chronic, Recreational Marijuana Use,’ (2020) 20 The Corinthian 16.

6. Dr Nathani gave oral evidence at the hearing and was cross-examined. He adopted both of his reports as true and correct. His oral evidence can be summarised as follows:

   (a)The Applicant provided candid and honest responses during their consultation. In relation to differences in the Applicant’s evidence since the first hearing, at which he minimised some of his conduct, Dr Nathani said ‘insight is modifiable’ and was the ‘main treatment outcome for people who undertake psychotherapy’. The Applicant had undertaken counselling and offence-specific courses in custodial settings, which resulted in greater insight about the adverse effects of substance abuse on his life;

   (b)The Applicant’s mental state at the time of his offending reflected an acute psychotic state that was probably linked to his use of synthetic cannabis daily for about six months. This caused him to misinterpret signs and signals from his surrounding environment. Dr Nathani explained that synthetic cannabis has a higher chronicity to its organic counterpart and is known for its more potent and longer lasting effects. During cross-examination, Dr Nathani was asked about evidence that the Applicant may have occasionally used cannabis during the period 2010 to 2015, and whether this affected his assessment. Dr Nathani said he was ‘more guided by the duration of abstinence than duration of past use’ and there was no evidence the Applicant engaged in any violent behaviour outside of the 10-day period of his offending. Dr Nathani considered this 10-day period as the ‘same incident’ for the purposes of his assessment;

   (c)The Applicant does not currently satisfy the diagnostic criteria for any psychological condition. His past use of synthetic cannabis may have impacted his memory because psychosis and altered perception affects the way memories are established and stored. Dr Nathani confirmed he had not used an actuarial instrument to test the Applicant’s memory, nor did he have any diagnostic foundation relevant to his assessment about the Applicant’s self-reported claim of past head trauma. He said the assessment about memory arose from the literature alone. The Tribunal notes there is no other evidence about the Applicant suffering any brain injury or cognitive impairment following assessment in custodial settings;[59]

   (d)Dr Nathani said he applied the HCR-20 actuarial instrument to assess the risk of the Applicant committing further violent offences and, in the absence of an applicable instrument, had used his clinical judgement to assess the risk of non-violent offending. He said the most significant indicators of the Applicant’s low recidivism risk are his ‘abstinence for a long time,’ including in the community while on bail, and through completion of offence-specific rehabilitation. The former indicated ‘what we can expect from the Applicant’ if released, compared to the ‘artificial environment’ of detention. Dr Nathani said these were ‘good prognostic signs’;

   (e)During cross-examination Dr Nathani was taken through several of the risk factors in the HCR-20 instrument. He said the Applicant’s violence occurred over a relatively brief period of ten days and there was no evidence of violence as a child, adolescent or earlier in his adulthood, which may have contributed to a higher risk assessment. He said the reference to ‘partial insight’ at page 35 of his report was intended to highlight that although the Applicant knew his violent offending was wrong, he did not have a full understanding of how interpersonal factors like a lack of stability and social connectiveness can contribute to violence. Dr Nathani agreed that a lack of insight, denial, or trying to downplay offending could increase a person’s risk of reoffending;

   (f)Dr Nathani said his understanding was the Applicant’s hallucinatory symptoms from synthetic cannabis ceased in November 2016 after his arrest. Based on the IHMS records, there was ‘no clear evidence of persistent psychotic symptoms’ in detention and Dr Nathani considered the Applicant remained in remission from psychosis. Dr Nathani considered that ceasing Mirtazapine was consistent with the ‘mild range’ of depressive symptoms experienced by the Applicant. When asked about any concerns regarding engagement with treatment, Dr Nathani said the absence of any diagnosed conditions or symptoms made it ‘highly unlikely [the Applicant] needs regular follow-up for psychosis, but may need psychotherapy to transition from detention to the community’. Dr Nathani stated: ‘I think we can trust [the Applicant] to seek assistance if experiencing symptoms’;

   (g)Dr Nathani considered the protective effects of prosocial support, realistic employment offers, and the fear of visa cancellation would significantly assist the Applicant in remaining abstinent from illicit drug-use and law-abiding;

   (h)Dr Nathani said deporting the Applicant would be highly detrimental to his mental health and put him at ‘high risk of developing a major depressive disorder’. Indefinite detention also put him at risk of psychological illness, which was currently in the ‘low range’ but rose to ‘high in the medium and long term.’

   TRIBUNAL CONSIDERATION OF EVIDENCE

   [59] Exhibit R1,192; 206.

   Applicant’s evidence

1. It is clear from the differences between the Applicant’s evidence at the first hearing and the present hearing, that he had earlier attempted to minimise his conduct.[60] He previously claimed one victim was ‘rude,’ he tried to avoid a fight, was ‘pressurised’ into making his police statement, and had ‘agreed with everything’ because he ‘just wanted to go.’[61] Despite being legally represented in his criminal matters, he claimed not to have pursued his ‘strong defence’ at trial and just ‘took [a] guilty plea’.[62] He claimed that his lawyer told him he was ‘not that experienced,’ and therefore was only comfortable appealing against the sentence and not the conviction.[63] The Applicant is also reported to have told an IHMS psychiatrist on 28 February 2018 that his ‘lawyer convinced him to plead guilty’ and he had not threatened to kill his housemate and ‘it was just a fight,’ which the psychiatrist thought was ‘tending to minimise.’[64]  The record states the Applicant also told the psychiatrist he was not intoxicated at the time of his offending and reported ‘no illicit drug use.’[65]

   [60] For example, Exhibit R1, pp 357 [33]; 358 [14]-[34]; 359 [15] regarding the threat to kill and use of a knife.

   [61] Ibid, 330 [39].

   [62] Ibid, 331 [18].

   [63] Ibid, 332 [14].

   [64] Exhibit R2, 19.

   [65] Ibid, 20.

2. In contrast, the Applicant’s most recent evidence was much more accepting of his past drug use and culpability. He conveyed persuasive insight and remorse. The Tribunal accepts Dr Nathani’s evidence that insight can improve over time. That said, it is not greatly to the Applicant’s credit that it has taken him until the present hearing to unequivocally accept his culpability rather than trying to blame-shift and downplay. The Tribunal rejects the submissions on the Applicant’s behalf that he may have been ‘confused’ at the previous hearing or subjected to ‘too many questions,’ or that his memory may have been ‘blurry’, or that inconsistencies may have resulted from him being unrepresented. The Tribunal instead accepts the Applicant’s oral evidence that he previously tried to minimise his conduct.

3. What is to the Applicant’s credit, however, is the persuasive commentary he provided about the offence-specific rehabilitation he had undertaken and how he intended to apply these lessons to avoid using synthetic cannabis and further offending. The Tribunal was left with the impression that four years in detention has proven a salutary experience for the Applicant, during which he has developed a much clearer understanding of the dire consequences for his ability to remain in Australia if he relapses and reoffends.

4. There are still some residual concerns, however, about discrete aspects of the Applicant’s evidence despite his explanations. Two examples follow:

   (a)The Applicant contextualised his drug use as limited to an approximately six-month period between early and late 2016. His housemate from 2010 to 2015, however, said the Applicant would ‘sometimes smoke weed’ during nights out with friends from 2010 to 2015. This did not result in any offending, however, or cause the housemate any problems. The Tribunal prefers the evidence of the housemate, who was an honest, supportive, and forthright witness with no motive to be other than truthful;

   (b)The Applicant’s description of an incident in 2012 when he refused to take a breath test was not credible. If his version is to be believed, he fell asleep in his friend’s car, while that friend and driver of the car went to get help after it broke down. The Applicant’s decision to accept responsibility for this offence, in preference to getting the friend who was the driver of the car to provide an alibi, beggars belief.

   Dr Nathani’s evidence

5. While the Tribunal accepts Dr Nathani’s key assessments, there were aspects of his evidence that were unpersuasive as follows:

   (a)The Tribunal does not accept Dr Nathani’s evidence that the Applicant’s conduct was in any way affected by a traumatic brain injury in 2015, which was based on the Applicant’s self-reported claim alone, without any corroborating diagnostic basis;

   (b)It remains unclear to the Tribunal why the Applicant is at high risk of developing an Adjustment Disorder with depressed mood or a Major Depressive Disorder from continued detention, when after being in detention since 2017 he is assessed by Dr Nathani as having no diagnosed mental health conditions, and his levels of distress are not disproportionate to stressors arising from detention and the prospect of deportation;

   (c)Dr Nathani’s comments about the impact of synthetic cannabis use on memory are based generally on the literature rather than actuarial testing of the Applicant’s memory; and

   (d)At times Dr Nathani’s comments seemed overly reliant on the Applicant’s self-reported claims.

   Evidence of other friends

6. In considering references from close friends and family, the Tribunal is mindful they can often provide the best possible perspectives about an Applicant’s conduct, which other members of society might consider unacceptable. Care must therefore be taken about the weight placed on such references, particularly those with only a limited understanding of the Applicant’s past conduct, and when their perspectives are not tested through cross-examination. The Tribunal accepts the evidence of the two witnesses who gave oral evidence, and the unchallenged documentary evidence of the other two friends who provided recent statements.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

7. The Full Court of the Federal Court of Australia has previously explained the nexus between the character test and Parliament’s intent, in Akpata:[66]

   The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of a relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

   [66] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65, 105 (Lander J).

8. It is worth noting the reference to the word ‘significant’ is no longer used in conjunction with assessing risk since Akpata.[67] Pursuant to the Direction, the grounds under s 501(6)(d)(i) of the Act ‘are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to…remain in Australia’, would engage in criminal conduct.[68] It is insufficient to find that the Applicant has engaged in such conduct in the past, there must be a risk of him engaging in criminal conduct ‘in the future’.[69]

   [67] As amended by Item 11, Schedule 1 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).

   [68] Direction annex A s 2 cl 6(2).

   [69] Ibid, cl 6(3).

9. In Hughes v The Queen (2017) 263 CLR 338 [74] (Hughes), Nettle J observed that evidence of a past offence is not significantly probative of the committing of another offence. His Honour stated that to make evidence of conduct or offending probative of subsequent offending, what is required is ‘something more about the nature of the offences or the circumstances of the offending in each case … which rationally affects to some significant degree the assessment of the probability that the accused committed the offence’.[70]

   [70] Hughes at [154].

10. The High Court’s reasoning in Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 (Guo) is often cited for its relevance to administrative decision-making and the ‘inter-relationship between the establishment of the occurrence of past events and the evaluation of the prospect that an event might occur in the future’. The majority observed that past events ‘are not a certain guide’, and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’. The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed about past events’.[71]

    [71] Guo at 574-575.

11. In cases where there is a criminal record, an adverse inference can more reliably be drawn. Proven offences also enable a decision-maker to consider the risk of re-offending or harm arising more accurately from a repeat of such conduct. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, Branson J held that a conviction was ‘strong prima facie evidence of the facts’.[72]

    [72] At [43].

12. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 [74], Rares J reasoned that it is not just criminal conduct that is relevant to assessments about character and risk:

    The Tribunal did not make a finding about the applicant’s conduct during 2010 to 2015 by analysing whether or not it was criminal. It did not need to characterise that conduct…as criminal in order to assess whether there was a risk, in the future, that the applicant would engage in criminal conduct…The Tribunal was required under s 501(6)(d)(i) to examine the risk of the applicant’s future conduct based on her past conduct.

    (Emphasis added)

13. The Applicant agrees that with one exception, his Australian National Police Certificate[73] is an accurate record of his offending. This records the following convictions in late 2017:

    [73] Exhibit R1, 15-16.

    (a)Drive Whilst Disqualified (two charges);

    (b)Use unregistered motor vehicle – highway (two charges);

    (c)Make threat to kill (two charges);

    (d)Recklessly cause injury (two charges);

    (e)Contravene a conduct condition of bail (two charges);

    (f)Fail to answer bail (two charges);

    (g)Commit indictable offence whilst on bail;

    (h)Breach alcohol interlock condition;

    (i)Forge identifying number auth/req by RSA;

    (j)Wilfully injure property; and

    (k)Handle/Receive/Dispose of Stolen goods.

14. The Tribunal notes that a CCO signed by the Applicant and sentencing judge on 9 November 2017 only refers to one count of Make threat to kill rather than two.[74] The Applicant has previously challenged the reference to two counts as incorrect[75] and the Tribunal accepts he was convicted of only one charge of Make threat to kill.

    [74] Ibid, 101.

    [75] Ibid, 247.

15. Apart from his two drink-driving offences a decade ago and the traffic offences in July and August 2016, the Applicant’s most serious criminal conduct traverses a relatively discrete period of approximately 10 days in late 2016, during which he was reportedly using synthetic cannabis regularly.[76] His offending included unprovoked violence against a friend he was living with, another against a stranger, and several breaches of conditional liberty.

    [76] Exhibit A1, [25]; Exhibit A6, [7.13]; Exhibit R1, 68, 70 [22], 88, 336; Exhibit R2.

16. Having regard for the totality of the evidence, the Tribunal finds the Applicant’s risk of engaging in further criminal conduct if permitted to remain in Australia is ‘low’ but nevertheless constitutes a real risk that is more than minimal or remote. He therefore fails the character test.

    ISSUE TO BE RESOLVED

17. Given that the Applicant fails the character test, the Tribunal must make a supervening determination regarding the discretion granted by s 501(1) of the Act. Relevant primary and other considerations in the Direction are now applied to the specific circumstances of his case.

    PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

18. Clause 8.1 of the Direction states:

    (1)  When considering protection of the Australian community, decision-makers should keep in mind 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2)  Decision-makers should also give consideration to:

    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.

    Tribunal consideration: The nature and seriousness of the conduct

19. Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
    
    

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

20. It was previously submitted by the ASRC that the Applicant’s convictions ‘relate to non-serious crimes.’[77] In contrast Her Honour Judge Hannan held in November 2017 that the Applicant’s offending encompasses ‘really significant violence’.[78]

    [77] Exhibit R1, 96 [21]; 100 [40].

    [78] Ibid, 233 [14].

21. There is no evidence the Applicant has any prior convictions in India, or that he was other than compliant and well-behaved in custodial settings. 

    Tribunal findings: The nature and seriousness of the conduct

22. The following aspects of cl 8.1.1(1) of the Direction are relevant to the specific circumstances of the Applicant’s case:

    (a)8.1.1(1)(a)(i): The Tribunal rejects the ASRC’s submission that the Applicant’s convictions are for non-serious crimes and prefers Judge Hannan’s characterisation of his offending The Applicant’s violent offending is viewed very seriously;

    (b)8.1.1(1)(c): The Tribunal does not accept the submission that there is no trend of increasing seriousness in the Applicant’s offending.[79] The offences of violence and other convictions in 2017 are much more serious than the driving related offences in 2010 and 2012. In terms of sentences imposed, the 12-month CCO awarded by the County Court on appeal and setting aside of the previous prison sentence shows the Applicant’s offending was not at the higher end of seriousness. That is not to diminish the significance of a 12-month CCO but acknowledges available punishment options were much higher than what was awarded; 

    (c)8.1.1(1)(d): The Applicant has been convicted of 16 offences, although it is acknowledged much of this is during a constrained period of approximately ten days in late 2016 during which he was using synthetic cannabis regularly; and

    (d)8.1.1(1)(e): The cumulative effect of the Applicant’s offending has caused physical harm to his victims, as well as the broader community in terms of the costs of dealing with his criminal conduct.

    [79] Applicant’s Statement of Facts, Issues, and Contentions (ASFIC), 8 [35].

23. The Applicant’s offending overall is very serious.

    Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

24. Clause 8.1.2(1) of the Direction states:

    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view 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 risk that it may be repeated may be unacceptable.

25. Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)    information and evidence on the risk of the non­citizen re-offending; and

    (ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

26. This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk that  he might in the future engage in it.’ In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J explained:

    That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”

1. In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [78], Mortimer J reasoned that:

   …[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.

   Contributory factors

2. In response to a question on a prison induction form dated  5 October 2017, the Applicant’s ‘primary drug of choice’ was recorded as ‘synthetic cannabis.’[80] At the first Tribunal hearing, the Applicant stated he was not a regular user of synthetic cannabis and smoked ‘very little’ with friends for a few months prior to his offending, about once a week.[81] At the present hearing, however, he agreed that his use of synthetic cannabis was more extensive than previously claimed, but continued to assert it was during a relatively constrained period of about six months after moving into a share house in early 2016.

   [80] Ibid, 201.

   [81] Ibid, 336 [23]; [34].

3. The Applicant said during his offending he was ‘very unwell and hallucinations made me do things that I would not normally do,’ with his offending ‘caused by acute mental illness’.[82] He said, however, that psychological treatment in custody ‘assisted him to recover’.[83]

   [82] Exhibit R1, 100 [40].

   [83] Ibid 96 [23].

   Remorse and rehabilitation

4. The Applicant expressed remorse for his offending on several occasions in his documentary[84] and oral evidence. He said that while on remand he completed certificate-level courses in food handling, cleaning, vocational pathways, worked in the prison kitchen and went to the gymnasium regularly.[85] He also referred to engagement with ‘support services’ to rehabilitate himself’’[86] and having ‘access to treatment and rehabilitation’ if released.[87] As discussed earlier, the Applicant gave insightful oral evidence about offence-specific rehabilitation he had undertaken, the salutary impact of four years in immigration detention, and how he intended applying lessons learned to avoid relapse and recidivism. This included what he had learned from the ‘understanding addiction’ course, such as drugs and alcohol causing ‘fake feelings’, making the user lose ‘touch with reality,’ destroying relationships, and creating the conditions for misconduct and offending.

   [84] Ibid, 73 [48].

   [85] Ibid, 72.

   [86] Ibid, 100 [40].

   [87] Ibid, 97.

5. The Tribunal has considered the following certificates and letters:

   (a)Certificates of completion dated between August and September 2021 for: Drug and Alcohol Abuse 101; Anger Management 101; Understanding addictions; and Depression management;[88] 

   (b)Completion of a unit towards a Certificate II in Cleaning Operations;[89]

   (c)Completion of a unit towards a Certificate I in Access to Vocational Pathways;[90]

   (d)The Applicant’s interactions with the Brotherhood of St Laurence and the ASRC;[91]

   (e)Letters dated 27 March 2018 and 21 August 2018 from Holyoake Men’s Group referring to the Applicant’s completion of a 12-week program.[92] The author stated that the Applicant ‘consistently contributes’ and intended to continue attending this group. A certificate from Holyoake dated 20 August 2018 stated that the Applicant successfully completed the Men’s Group Program;[93] 

   (f)Letter dated 1 June 2017 from the Australian Red Cross, which supported the Applicant after his release from prison in November 2016.[94] The letter stated in part:

   He began engaging in our services on the 8th of November 2016. He had just been released from prison and was after financial support, which included housing. [The Applicant] also stated that wanted assistance with physical and mental health issues he was facing upon release from prison.

   [The Applicant] was approved onto the SRSS program on 29/11/2016 and from this date onwards we have provided him with intensive case work support to assist him with his health issues and accommodation amongst other things. He has always attended his appointments and engaged with us in an honest way.

   [88] Exhibit A1.

   [89] Exhibit R1, 226.

   [90] Ibid, 227.

   [91] Ibid, 249-254.

   [92] Ibid, 111; 257.

   [93] Ibid, 246.

   [94] Ibid, 105.

   Protective factors

6. If released, the Applicant said he wants to immediately return to work and had received several offers of employment. Mr Sypott submitted the Applicant’s past employment was not a substantial protective factor in preventing his drug use and offending. The evidence also discloses two offers of accommodation and other practical and emotional support. It is further submitted on the Applicant’s behalf that his awareness of the potentially dire consequences of any further offending is another compelling protective factor.[95]

   [95] Ibid, 97 [28].

   Risk

7. In addition to the evidence of Dr Nathani, it was submitted on the Applicant’s behalf that he ‘does not pose a risk of harm to others or himself’.[96] Ms Pathan referred to the time the Applicant lived in the community for nine months before being taken into detention as a positive indicator of his ability to remain abstinent and law-abiding if released.[97]

   [96] Ibid, 96-97 [24]-[27].

   [97] ASFIC, 7 [34].

   Applicant’s closing submissions

8. Ms Pathan invited the Tribunal to find on balance that this primary consideration weighs in favour of not refusing the Applicant’s visa.[98]

   [98] Ibid, 8 [38].

   Respondent’s closing submissions

9. Mr Sypott submitted this primary consideration is only capable of weighing against the Applicant who constitutes a ‘real and ongoing risk of engaging in criminal conduct.’ He pointed to the repeat nature of some offending, such as the two drink driving offences, offences involving violence, and breaches of conditional liberty. He said the Applicant has a history of depression and anxiety since 2014 due to strained relations with his family, which would continue upon release. Mr Sypott also submitted that the continuing implausibility of aspects of the Applicant’s evidence should raise concerns. He said the Applicant’s more forthright evidence at the present hearing arose from ‘self-interest’ and should be seen as ‘tactical’ in nature. Mr Sypott submitted this primary consideration should be given significant weight in favour of refusing the visa.

   Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

10. The potential harm arising from a repeat of the Applicant’s offending is potentially very serious, with consequences encompassing serious physical harm or death. This includes from driving under the influence of alcohol. Having regard to the fact his alcohol-related driving offences were almost a decade ago, however, coupled with the alcohol rehabilitation in evidence[99] and other protective factors, the Tribunal considers a repeat of alcohol-related driving offences to be remote.

    [99] Exhibit R1, 246; 257.

11. Most of the Applicant’s offending, including the violent offences, were committed during a ten-day period in late 2016. This occurred in the context of regular use of synthetic cannabis for a period of approximately six months after moving to a share house. The harm that would be caused by a repeat of these violent offences encompasses serious injury or death. That his conduct did not cause more significant harm to his housemate, who gave supportive evidence in court,[100] or to the victim outside the mosque,[101] was fortuitous at best. The Applicant’s violence had the potential to cause much more serious harm.

    [100] Ibid, 237 [5], [18]; 238 [17]-[27].

    [101] Ibid, 144-148.

12. Little weight is placed on the time the Applicant spent in the community on bail, because under his conditional liberty arrangements he was required to report to the police and a hospital. Moreover, this aspect of the Direction (cl 8.1.2(2)(b)(2)) refers to ‘evidence of rehabilitation achieved…, giving weight to the time spent in the community since their most recent offence’, rather than just considering the time an applicant had spent in the community without reoffending.[102]

    [102] Ibid, 478 [72], albeit in the context of a comparable clause in an earlier Direction.

13. Contrary to his claims about a discrete period of synthetic cannabis use commencing in early 2016, which contextualised his more serious offences later that year, the Tribunal prefers the evidence of the Applicant’s close friend and housemate from 2010 to 2015, that the Applicant ‘would sometimes smoke weed’ with friends. There is no evidence, however, that this previous drug use resulted in offending or other misconduct. Moreover, the Tribunal accepts Dr Nathani’s opinion that the duration of abstinence is of greater significance than earlier drug use not resulting in adverse consequences. The Tribunal accepts there was a more intensive period of synthetic cannabis use by the Applicant from early 2016, which contributed to a significant deterioration in his mental health and his most serious offending. That is evident from several documents in evidence, including the Court’s observation in November 2017 that the Applicant needed supervision and assistance with his mental health.[103] There is no evidence to suggest, however, that the Applicant has been other than abstinent from illicit drugs and alcohol since his arrest approximately five years ago.    

    [103] Ibid, 234 [11].

14. The Applicant served a large part of his prison sentence prior to a successful appeal.[104] He has since remained abstinent from alcohol and illicit drugs and meaningfully engaged in rehabilitative opportunities. His responses persuasively show he is more mature after four years in immigration detention and has internalised lessons from the rehabilitative opportunities afforded to him. Having observed the Applicant over three days, the Tribunal was persuaded that his thoughtful and specific responses about what he has learned since his offending demonstrates much greater insight about how factors like addiction and lack of stability can contribute to violence. He displayed a convincing determination about wanting to remain abstinent, law-abiding, and never again returning to the circumstances that have put his life on hold during the last five years.

    [104] Ibid, 235 [3]-[6].

15. When the nature and seriousness of the Applicant’s past offending is coupled with his low recidivism risk, this primary consideration weighs against his application, but not heavily so.

    TRIBUNAL CONSIDERATION: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

16. There is no evidence of any family violence by the Applicant and this primary consideration carries neutral weight. 

    TRIBUNAL CONSIDERATION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

17. There is no evidence about the interests of any minor children in Australia being enlivened and this primary consideration carries neutral weight. 

    TRIBUNAL CONSIDERATION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

18. Clause 8.4(1) of the Direction states:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

19. Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:

    (a)  acts of family violence;

    (b)  causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)  commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;

    (e)  involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;

    (f)    worker exploitation.

20. Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision-makers to proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.

21. Clause 8.4(4) of the Direction correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different direction. Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation aligning with that of the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on the Applicant’s individual circumstances or evidence about those circumstances.[105] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[106]

    [105] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).

    [106] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).

22. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[107] The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR.[108]  

    [107] Ibid at 473 [75]–[76] (Charlesworth J).

    [108]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.

23. It was submitted on the Applicant’s behalf that his immigration detention represents a punishment for his offending ‘in excess of what the courts envisaged and beyond community expectations’.[109]

    [109] Exhibit R1, 98 [30].

24. The submissions of the parties traversed two extremes. Ms Pathan submitted that while the deemed weight of this primary consideration weighs against the Applicant, the Tribunal ought to give it little weight that ‘does not outweigh the other favourable considerations of his case’. Mr Sypott submitted that the Applicant’s criminal history meant the community would expect his visa to be refused, and this primary consideration ‘should be assigned significant weight.’

    Tribunal findings: Expectations of the Australian community

25. There is no evidence the Applicant has engaged in offending within the meaning of ‘serious character concerns’. The serious bulk of his offending encompasses a relatively brief period of ten days and he has been law-abiding for most of his time in Australia.

26. To the extent that the Applicant’s submissions suggest that visa refusal, immigration detention, and possible removal represent a continuation of criminal punishment, this is rejected. That is because the ‘power to remove or deport aliens from a country is executive in nature and…non-punitive.’[110] In O’Keefe v Calwell,[111] Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence. More recently in Falzon at [96], Nettle J held that, consistent with previous High Court reasoning,[112] immigration detention is valid for the purpose of removing a non-citizen from Australia, is not punitive, and involves no exercise of judicial power or intention to impose additional punishment.[113]

    [110] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J).

    [111] (1949) 77 CLR 261, 278.

    [112] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33].

    [113] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].

27. The Applicant has lived in Australia for approximately 14 years and would therefore be afforded a higher level of tolerance for his criminal conduct. Notwithstanding other positive features of his application, however, this primary consideration weighs moderately against his application.

    OTHER CONSIDERATIONS

    Tribunal Consideration: International non-refoulement obligations

28. Clause 9.1 of the Direction provides:

    (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

    (2) In making a decision under section 501 or 501 CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    (3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197 AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

    (4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

    (5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

    (6) It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

    (7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501 CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

    (8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501 CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.

1. The effect of ss 197C and 198 of the Act was recently amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). The amendments modified s 197C of the Act so as not to require the removal of unlawful non-citizens to whom protection obligations are owed unless these have been set aside, or the Minister is satisfied they are no longer engaged, or the non-citizen requests voluntary removal. Unlawful non-citizens will not be removed under s 198 of the Act while merits review remains in process.

2. The Migration and Refugee Division (MRD) of this Tribunal has previously found the Applicant has a well-founded fear of persecution for a Convention reason.[114] Accordingly, he is a person in respect of whom Australia has protection obligations.

   [114] Exhibit R1, 43-55.

3. The following was submitted on the Applicant’s behalf:[115]

   [115] Applicant’s Statement of Facts, Issues and Contentions, 11 [46] – [48]; 14 [63] – 16 [70].

   International non-refoulement obligations

   46. The way [BLSL] puts forward his case in respect of this consideration (cl 9.1) has two aspects:

   (a) First, [BLSL] contends he is owed protection, as per the AAT Protection Decision. It is understood that this is conceded by the Minister.

   (b) Second, Australia’s international reputation would be tarnished if [BLSL] were to be refouled in breach of Australia’s non-refoulement obligations.

   Relatedly, the Australian community (quite apart from what the rest of the world might think) would take a dim view of its government if it were to breach international obligations to which it voluntarily acceded.

   47. For completeness, it is noted that [BLSL] continues to rely on all the submissions previously made on his behalf in this regard.

   48. This consideration weighs strongly in favour of the Tribunal not refusing [BLSL’s] visa under section 501.

   …

   63. There are two possible legal consequences of refusing the protection visa. [BLSL] submits that either is a possibility, and the Tribunal must consider each of them as possible legal consequences of a decision to affirm the Delegate Character Decision.

   64. Section 197C(3) of the Act, as introduced by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 in May 2021, provides that section 198 does not require or authorise removal of an unlawful non-citizen to a country where a protection finding is made with respect to that country, during the course of considering a valid protection visa application. As the AAT Protection Decision found that [BLSL] is owed protection obligations under subsection 36(2)(a) and no findings have been made that [BLSL] does not satisfy subsection 36(1C), [BLSL] falls within subsection 197C(5)(a) and the Australian government is not authorised to remove [BLSL] to India despite section 198.

   65. Therefore, there is a high risk that [BLSL] will be detained indefinitely. There is evidence in the witness statements and the Psychiatric Report of the hardship that [BLSL] has suffered in detention and the impact upon his mental health. There is every reason to suppose that those hardships will persist after any decision to refuse his protection visa and whilst [BLSL] remains in detention. This is particularly in light of Dr Nathani’s opinion that ‘[i]n the event of ongoing detention, [BLSL] is at high risk of developing an Adjustment Disorder with depressed mood’ and the ‘risk of developing a Major Depressive Disorder is in the low range in the short-term but high in the long-term’. So, regardless of whether the continuation of the detention [BLSL] might face as a consequence of non-revocation is categorised as ‘indefinite’ or ‘prolonged’, ongoing detention will continue to cause hardship to [BLSL]. That is a consequence this Tribunal must consider.

   66. The fact of the detention and the hardship that will accompany it, remains a consideration for the Tribunal even if, during such detention, the Minister may want to consider whether to exercise the personal discretion under s 195A to grant another visa to [BLSL] (which is, at this stage, entirely speculative). It is noted that it would seem unlikely that the Minister would exercise that personal discretion and grant [BLSL] a visa that would allow him to remain in the community, after refusing his protection visa on character grounds and continuing to oppose the present application. Similarly, in the recent Full Federal Court decision of MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, in the analogous context of the non-revocation of a section 501 visa cancellation, Wigney J stated that the Tribunal was obliged to consider whether there was ‘any realistic possibility’ of the appellant being granted another visa’, and that:

   an assessment of whether there was any realistic prospect of the appellant being granted such a visa in the future does not involve speculation. Rather, it involves a deduction or inference having regard to the undisputed or ineluctable circumstances; the reality of the position that the appellant was in.

   67. Clause 9.1(3) of Direction 90 states that the existence of non-refoulement obligations will not necessarily result in removal of the non-citizen as the Minister may exercise his personal discretion under section 195A to grant a visa or section 197AB to make a residence determination. However, the possibility that the Respondent would intervene under one of his non-compellable powers to grant [BLSL] a visa is extremely remote. To date, the Respondent has not intervened to release [BLSL] who has been held in immigration detention since August 2017, notwithstanding the AAT Protection Decision made in 2016.

   68. Also, Attachment A to these submissions is the Department of Home Affairs' response to a Freedom of Information request including data until 30 April 2021, which indicates that for the past five years, the Minister has intervened less than five times per year under section 195A where the visa holder did not satisfy section 501 and non-refoulement obligations were owed. Therefore, the Tribunal should conclude that there is not a realistic possibility that [BLSL] would be released from detention under the Minister's discretionary powers. Consequently, there is no realistic possibility that [BLSL] would be released from immigration detention on the basis of a future visa grant.

   69. However, subsection 197C(3)(c)(iii) of the Act provides an exception that a person who is owed a protection finding can be removed if they request to be removed in writing. In the face of indefinite detention and the consequential impact on his mental health, it is conceivable that [BLSL] may request removal despite the serious harm he would face on return to India. We note that there is no evidence before the Tribunal that removal of [BLSL] to a third-country alternative is available. Therefore, there remains a risk that [BLSL] would face refoulement. This is also noted as a possible consequence of the executive policy as stated in Direction 90: for example, at clause 9.1(3), it is stated that the existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa.

   70. Consequently, the legal and practical consequences of a decision to refuse [BLSL’s] Protection visa application remain either refoulement to India or indefinite detention, or some combination of the two involving a period of detention prior to refoulement. Both involve breaches of Australia’s international obligations, including the Convention relating to the Status of Refugees 1951 (and the 1967 Protocol) (Articles 1, 33), the International Covenant on Civil and Political Rights (Articles 6, 7, 9, 10), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Articles 1, 2, 3, 16).

   (Footnotes removed).

4. Pointing to the evidence of Dr Nathani, Ms Pathan reinforced in closing submissions that the Applicant’s mental health will deteriorate because of indefinite detention or the risk of refoulement.[116] She said the exercise of a non-compellable discretion to issue another visa by the Minister was particularly unlikely given the release of data by the Respondent under Freedom of Information in April 2021.[117] This data showed an exercise of Ministerial discretion was an infrequent occurrence under s 195A of the Act, where an applicant was found to fail the character test and non-refoulement obligations were owed.

   [116] Exhibit R1, 100 [39].

   [117] Exhibit A7.

5. Mr Sypott accepted that protection obligations are owed to the Applicant and confirmed that none of the paragraphs of s 197C(3) of the Act are satisfied, nor is an exercise of Ministerial discretion or a third-country relocation option currently in prospect. The following written submissions were also made on behalf of the Respondent:

   The CIOR Amendment Act and indefinite detention

   35. The Migration Amendment (Clarifying International Obligations For Removal) Act 2021 (CIOR Amendment Act) commenced on 25 May 2021. The CIOR Amendment Act amended s 197C(3) of the Act, such that it now provides that s 198 of the Act does not require or authorise an officer to remove an unlawful non-citizen to a country if a ‘protection finding’ has been made in relation to that person and country unless:

   35.1. the decision finding that the non-citizen engages protection obligations has been quashed or set aside;

   35.2. the Minister is satisfied that the non-citizen no longer engages protection obligations; or

   35.3. the non-citizen requests voluntary removal.

   36. The Minister accepts that a ‘protection finding’ has been made in respect of the applicant in circumstances where s 36(2)(a) is satisfied and where an adverse finding has not been made under s 36(1C).

   37. None of the paragraphs of s 197C(3) are satisfied or likely to be satisfied in the foreseeable future.

   37.1. A decision has not been made to set aside the decision of this Tribunal’s Migration and Refugee Division, nor is the Minister considering making such a decision.

   37.2. A decision has not been made that the applicant is no longer a person in respect of whom a ‘protection finding’ applies, nor is the Minister considering making such a decision.

   37.3. The applicant has not requested removal to India. The suggestion, by way of submission, that the applicant may decide to request removal despite the risk of harm that he faces in India is speculative and finds no basis in the evidence.

   38. The Minister accepts that, at this point in time, the applicant is unable to be returned to India and, if his visa is refused under s 501(1), he will remain in Australia, detained under s 189 of the Act until one of the following events occurs:

   38.1. the Minister exercises his personal discretion under s 195A of the Act to grant the applicant a visa;

   38.2. the Minister exercises his personal discretion under s 197AB of the Act to make a residence determination in respect of the applicant;

   38.3. the Minister makes a decision under s 197D that the applicant no longer engages protection obligations;

   38.4. the applicant is removed to a third country; and/or

   38.5. the applicant requests to be returned to India.

   39. The consideration of matters such as the exercise of discretion under ss 195A or 197AB, or removal to a third country, is likely to occur after conclusion of the visa application process. The fact that there is no evidence before the Tribunal of these matters presently being considered is therefore readily explicable and does not gainsay the statement in Direction 90 that consideration may be given to these options.

   40. Nonetheless, the Minister accepts that there is no “chronologically fixed endpoint” to this detention (such that it might be described as ‘indefinite’). As a result, the applicant may be detained for a prolonged period. It is open to the Tribunal to give this matter, and any impact that such detention may have on the applicant’s mental health, weight against refusing to grant the visa.

   Weight to be given to international non-refoulement obligations and ‘reputational damage’

   41. In circumstances where the applicant will not be refouled to India in breach of Australia’s international obligations, the Tribunal should give international non-refoulement obligations, and the “dim view” that the international and Australian community may take of such a breach, limited weight against refusing to grant the visa.

   (Footnotes removed).

   Tribunal findings: International non-refoulement obligations

6. Pursuant to cl 9.1(6) of the Direction and given there is no dispute between the parties about the MRD’s previous protection finding, the Tribunal accepts non-refoulement obligations are owed to the Applicant.

7. In terms of the primary legal consequence of an adverse decision in this matter, the refusal of the Applicant’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of an adverse decision, he is liable to be detained under s 189 of the Act and removed as soon as reasonably practicable subject to the constraints of the amended s 197C of the Act. It is permissible to continue a person’s detention for a legal reason, including the possible exercise of a non-compellable Ministerial discretion at s 195A of the Act,[118] or to make a residence determination under s 197AB. Other factors that may impact the length of a non-citizen’s detention include:

   (a)The extent to which an Applicant pursues their appeal rights;

   (b)Whether a third country relocation option is explored; or

   (c)Whether an applicant decides to elect voluntary return; or

   (d)How the COVID-19 pandemic in Australia or a receiving country may impact on the obligation to remove as soon as reasonably practicable.

   [118] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].

8. It remains unclear to the Tribunal whether the Applicant will exercise appeal rights in the event of an adverse decision, or how COVID-19 or another intervening act may impact the time he spends in detention, or whether a third country relocation option may emerge, or whether indeterminate detention may cause the Applicant to elect voluntary return to India despite non-refoulement obligations being owed. The Tribunal inferred from the Applicant’s submissions that this latter option was akin to self-initiated refoulement in preference to remaining detained indefinitely, which the Tribunal found speculative at best. The Tribunal also found the submissions on behalf of the Minister, that consideration may be given to exercising the discretion to grant another visa in the event of an adverse decision, to be similarly speculative.

9. It does not appear reasonably practicable to remove the Applicant in the event of an adverse decision. Any processes that might follow an adverse decision turn on decisions yet to be made by the Applicant and Respondent. These are likely to take a considerable amount of time, with the Applicant liable to remain in immigration detention with no fixed endpoint, which can be characterised as indefinite detention.[119] This could result in continuing hardship and potentially a deterioration of his mental health.

   [119] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [123].

10. Were the Applicant to be refouled contrary to a finding that non-refoulement obligations were owed to him, negative consequences would arise for Australia’s international reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law. The Tribunal’s concerns about refoulement are minimised but not entirely removed by the available facts.

11. Irrespective of any future option that may emerge, which cannot be speculated about, a refusal decision comes with considerable significance for the Applicant, including the prospect of continuing deprivation of his personal liberty for an indeterminate period. In this regard the Tribunal respectfully adopts the reasoning in DOB18 at [35], where Griffiths J cautioned against speculating about the course of future decision-making:

    …Justice Flick’s reasoning in Ali…In my respectful view…properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...  

    (Emphasis added)

12. The Applicant is owed non-refoulement obligations and confronted by a continuation of his immigration detention since 2017, which carries very substantial weight in favour of approving the visa. The specific circumstances of this case are such that the Tribunal has given this consideration comparable weight to a primary consideration.

    Tribunal consideration: Extent of impediments if removed

13. Clause 9.2(1) of the Direction states that:

    (1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)        The non-citizen’s age and health;

    b)        Whether there are substantial language or cultural barriers; and

    c)Any social, medical and/or economic support available to them in that country.

    Country of return

14. There is no dispute that the country of return in the event of repatriation is India, which the Applicant last visited 14 years ago.

    Age, language, culture

15. The Applicant is currently 35 years of age and previously lived in India until the age of 20. He speaks fluent Hindi and English and made no claims about language or cultural impediments.

    Health

16. The Applicant claims to have suffered from depression since approximately 2014.[120] He referred to suicidal ideation after a telephone conversation with his mother, who told him to kill himself, which he found devastating.[121] He said that his mental health has improved with treatment and is currently stable.[122] There is no current impediment to him returning to fulltime employment.[123]

    [120] Ibid, 68 [6].

    [121] Ibid, 68 [7].

    [122] Ibid, 69 [12]; [14].

    [123] Ibid, 73 [48].

    Social welfare system in India and other support

17. The Applicant’s unchallenged evidence is that he has been disowned by his family in India and has no one there to rely upon for practical and emotional support. There is no evidence, however, that if returned, he would not be entitled to the same level of support as other Indian citizens.    

    COVID-19

18. The Applicant’s IHMS records disclose he received a first dose of COVID-19 Vaccine on 26 August 2021.[124] He confirmed during the hearing that he has since been fully vaccinated. Submissions were made about potential risks to his health from COVID-19 if repatriated to India. His fears centre on being unable to access medical care if he contracted COVID-19 due to an overstretched Indian medical system.[125] It was also submitted on the Applicant’s behalf that:[126]

    [BLSL] would also face challenges due to the COVID-19 situation in India. [BLSL’s]  home region of [redacted] is currently subject to prolonged state lockdowns to curb prevalence of COVID-19. The New York Times has reported even in the past week that a ‘deadly second wave of coronavirus infections is devastating India, leaving millions of people infected and putting stress on the country’s already overtaxed health care system,’ with only ‘a tiny portion of the population [having] been fully vaccinated.’ There have also been reports of disinformation linking Muslim populations with the spread of COVID-19, which has also resulted in Muslims being unable to access treatment for COVID-19.

    (Footnotes omitted)

    [124] Exhibit R2, 1.

    [125] Exhibit A1, 6 [48].

    [126] ASFIC, 12 [51].

19. The Tribunal has considered the DFAT Country Report raised by the Applicant, which refers to the Indian economy being sharply impacted by the COVID-19 pandemic, resulting in its ‘first ever technical recession.’[127] Reference is also made to high levels of unemployment, particularly but not exclusively among India’s youth.[128] The Tribunal has also considered the references to challenges faced by India’s health system, including the strain placed on health infrastructure and difficulties in accessing mental health care.[129]

    [127] ASFIC, 12 [50]. See paragraph 2.24 of the DFAT Country Report.

    [128] Ibid, 2.26; 2.48-2.49.

    [129] Ibid, 2.42.

    Respondent’s submissions

1. Mr Sypott submitted that given there is no realistic possibility of the Applicant being returned to India, this consideration should be given neutral weight.

   Tribunal findings: Extent of impediments if removed

2. The Tribunal accepts the Respondent’s submission that because non-refoulement obligations are owed to the Applicant, coupled with the recent amendments to s 197C of the Act, he cannot be refouled while protection obligations are engaged. There is no evidence of any contemplation by the Minister, pursuant to s 197D of the Act, that the Applicant is ‘no longer a person in respect of whom any protection finding…would be made’. It follows in the specific circumstances of this case that impediments do not currently arise within the meaning of cl 9.2(1) of the Direction.  This consideration is not enlivened and carries neutral weight.

   Tribunal consideration: Impact on victims

3. Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a refusal decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where this information is available.

4. Submissions were made on the Applicant’s behalf that:

   …the main victim of the Applicant's offences, [name redacted], provided a supporting letter for the Applicant which explained that the Applicant's conduct occurred during a misunderstanding between the Applicant and him and that he and the Applicant are still friends. Further, Mr [name redacted] vouches for the Applicant's character and wishes that the Applicant should be released from detention soon. Therefore, there is no evidence suggesting that there would be a negative impact on any victims or their family members if the Department grants a Protection visa to the Applicant.[130]

   [130] Exhibit R1, 100 [38].

5. The Tribunal has considered a brief letter dated 2017 from a victim of the Applicant’s violent conduct.[131] This somewhat dated correspondence does not traverse the impact of a decision in this matter on the victim or his family. The victim was not called as a witness and the Applicant is no longer in contact with him.

   [131] Ibid, 74.

   Tribunal findings: Impact on victims

6. The Tribunal rejects submissions that inferences can be made from the victim’s correspondence that cl 9.3(1) of the Direction is enlivened in favour of the Applicant. This consideration is afforded neutral weight.

   Tribunal consideration: Links to the Australian community

7. Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ Notwithstanding the evidence of the Applicant’s previous employer about how hard it is to source staff in the current environment, there is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. It follows that the presumption in the Direction is not displaced and cl 9.4.2 of the Direction is of neutral weight.

   Tribunal consideration: Strength, nature, and duration of ties

8. Clause 9.4.1 of the Direction states:

   (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­citizen has to the Australian community. In doing so, decision-makers must have regard to:

   (a)  how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b)  The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9. The Applicant has lived in Australia since April 2007. In terms of positive contributions, he worked consistently prior to his arrest. He has been offered more than one job opportunity if released and a former employer spoke in highly favourable terms about the Applicant’s work ethic.

10. The evidence discloses the Applicant has no family members in Australia but retains a small group of supportive friends who continue to offer him accommodation and other practical and emotional support. In contrast he has been disowned by his family in India and has no known sources of financial, practical, or emotional support.

11. The Respondent submitted that only ‘limited weight’ should be given to this consideration given the Applicant’s limited network of friends and ties to the Australian community.

    Tribunal findings: Strength, nature, and duration of ties

12. Notwithstanding the limited nature of the Applicant’s ties to Australia, what ties he has are here, with a small group of supportive friends and a former employer willing to provide continuing support and encouragement. They would clearly be saddened by an adverse decision. On balance, this consideration weighs substantially in favour of revocation. 

    CONCLUSION

13. The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction to the specific circumstances of his case.

14. The primary consideration Protection of the Australian community weighs against this application but not heavily so. Expectations of the Australian community weighs moderately against granting the visa, despite the Applicant’s 14-year residence in Australia and positive contributions. There is no evidence of family violence or reference to minor children, so these primary considerations carry neutral weight.

15. Notwithstanding the limited nature of the Applicant’s ties to Australia, what ties he has are here. He enjoys strong and consistent support from a small circle of friends, who would be saddened by his removal.

16. The Applicant is owed non-refoulement obligations and it is not reasonably practicable to remove him. This means his four-year stay in immigration detention will be prolonged in the event of an adverse decision with no foreseeable endpoint. Given the circumstances of this case it is appropriate to depart from the general setting at cl 7(2) of the Direction, with International non-refoulement obligations carrying comparable weight to a primary consideration. Because the Applicant cannot currently be removed, the consideration Extent of impediments if removed is not enlivened. Similarly, the Impact on victims and Impact on Australian business interests are not enlivened.

17. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised not to refuse to grant the Applicant’s visa. That is because International non-refoulement obligations and Strength, nature and duration of ties outweigh the two countervailing primary considerations.

    DECISION

18. It follows that the Tribunal sets aside the reviewable decision and substitutes it with the decision that the Tribunal exercises the discretion in s 501(1) of the Migration Act 1958 (Cth) not to refuse to grant the Applicant a Protection (Class XA) Visa.

I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate

Dated:  15 November 2021

Dates of hearing:

3, 4 and 5 November 2021

Counsel for Applicant:

Solicitors for the Applicant:

Ms Suganya Pathan

Asylum Seeker Resource Centre

Advocate for the Respondent:

Mr Keith Sypott

Solicitors for the Respondent:

Australian Government Solicitor