BPVS and Minister for Home Affairs (Migration)

[2018] AATA 4449

BPVS and Minister for Home Affairs (Migration) [2018] AATA 4449 (23 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5089

Re:BPVS

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:23 November 2018

Place:Sydney

The decision under review is affirmed.

......................................[SGD]...........................................

The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

MIGRATION – refusal to grant Protection (Class XA) visa – failure to pass the character test – previous criminal offences – whether there is a risk to the Australian community of the applicant committing further offences or engaging in other serious conduct – whether the nature of the character concerns or offences are such that the Australian community would expect that the applicant should not be granted a visa – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community from criminal or other serious conduct – expectations of Australian community – other considerations –non-refoulement obligations owed to applicant under International law – decision under review affirmed

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Migration Act 1958 (Cth) – ss 189, 196, 197C, 499, 500, 501, 501CA

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Al-Kateb v Godwin [2004] HCA 37
Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – cll 6.2, 6.3, 9.1.1, 11.1, 11.1.1, 11.3, 12.1, 12.4

INTERNATIONAL MATERIALS

International Convention on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

23 November 2018

INTRODUCTION

1. The applicant challenges a decision of the respondent to refuse to grant the applicant a protection (Class XA) Visa (the Visa) pursuant to s 501(1) of the Migration Act 1958 (the Act).

2. The critical matter on this application is whether the decision of the respondent should be upheld as the correct and preferable decision in relation to the finding that the applicant has not satisfied the respondent that he passes the character test contained in s 501(6) of the Act.

   FACTS

3. The applicant is a citizen of India and holds an Indian passport. The applicant’s original passport was issued on [date] 2005 numbered [deleted]. It seems this was replaced by another passport issued by India on [date] 2009, current to [date] 2019, number [deleted]. The applicant was born on [date] 1982 and is 36 years of age.

4. The applicant was a holder of a Student (Temporary) (Class TU) Visa and using such Visa he arrived in Australia on 5 August 2006. Such Visa expired on 18 September 2006 but the applicant was granted a second Student (Temporary) (Class TU) Visa on that date.

5. The applicant departed Australia on 25 September 2007 and was absent until 17 October 2007. He entered Australia pursuant to the Visa issued on 18 September 2006. It expired on 26 October 2008.

6. On 23 October 2008 the applicant applied for a Skilled (Provisional) (Class VC) Visa which is granted on 19 October 2010. The delay is unexplained.

7. Between 2009 and 2013 the applicant departed Australia on three occasions as the holder of a Bridging B (Class WB) Visa which had been issued in association with his application for the Skilled (Provisional) (Class VC) Visa.

8. On 19 April 2012 the applicant’s skilled (Provisional) (Class VC) Visa (which had apparently been issued on an unspecified date) ceased.

9. On 17 April 2012 the applicant lodged an application for a Skilled (Residents) (Class VB) Visa. Such application was refused on 16 May 2014 and the refusal was affirmed by the Migration Review Tribunal on 2 September 2014.

10. On 2 October 2014 the applicant lodged an application for a Protection (Class XA) Visa and he was granted an associated Bridging C (Class WC) Visa.

11. By decision made on 6 August 2018 by the respondent’s delegate, the delegate concluded that the applicant represented: “a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of [the applicant] reoffending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.”

    APPLICATION FOR REVIEW

12. The applicant seeks review of such decision. A statement of facts, issues and contentions has been filed dated 18 October 2018.

13. The critical matter for determination on this application is whether the delegate was justified in making the finding set out above arising from the applicant’s criminal record.

    CRIMINAL RECORD OF APPLICANT

14. The applicant’s criminal record in Australia is as follows:

Court date	Offence date	Offence	Outcome
19/06/2015 Sutherland Local Court	20/02/2015 20/02/2015	Possess prohibited drug Never licensed person drive vehicle on road (first offence).	Convicted and fined – severity appeal lodged. Order varied on appeal to s10 non-conviction and bond (6 months) to be of good behaviour and to attend doctors regularly and obey any directions about treatment.
05/08/2015 Sutherland Local Court	11/03//2015 11/03/2015 01/06/2015	Destroy or damage property (dv) (more than $2000, less than $5000) Wield knife in a public place Contravene prohibition/restriction in AVO (dv)	s 10 non-conviction and bond (2 years) to continue to consult Professor Smith at the Albion Centre and follow all recommended treatment and counselling. Section 10 non-conviction and bond (2 years)
10/08/2016 District Court of NSW	29/02/2016	Common assault (three counts)	Section 9 conviction and bond (6 months) – severity appeal lodged. Order varied on appeal – charges dismissed in accordance with s 32(3)(b) of the Mental Health (Forensic Provisions) Act with treatment plan. Applicant discharged to attend for assessment and treatment.
23/05/2017 Parramatta Local Court	03/04/2017	Common assault (dv) (two counts)	Section 9 conviction and bond (12 months) to attend for counselling, educational development, drug or alcohol rehab, to undergo psychiatric/psychological counselling as directed, to continue treatment with Ms Hennessy or other appropriate health professional as long as he is advised it is necessary.

APPLICANT’S SUBMISSIONS

1. The applicant submits that the offending is not serious, the applicant submits:[1]

   (a)The offending lies at the lower end of the scale of offending of this nature, given the short duration of time, and lack of any physical harm between the applicant and any victims, and the clear connection that the offending had to substance use and mental illness.

   (b)The findings of the delegate disregarded the fact that the courts had only recorded convictions for two of the offences, and in that instance it only involved a conviction with a good behaviour bond and no other penalty. The applicant submits that the categorisation of the drug offence by the delegate being a serious offence is erroneous, when a drug possession offence is at the lowest end of the scale of drug related offences.

   (c)The courts’ sentencing of the offences is indicative of the court’s assessment that the offending was at the lower end of the scale of offending in circumstances and that they were not particularly serious offences as it was open to the court to have imposed a custodial sentence.

   (d)The frequency of any offending has decreased and the seriousness has also decreased.

   [1] Exhibit D at paras [69]-[72].

   Community Expectations

2. In respect of the risk to the Australian community, the applicant submits:[2]

   (a)The likelihood of the applicant engaging in further criminal conduct of this or any other nature is at the most minimal or remote.

   (b)Since he has been in Australia, the applicant has been gainfully employed, and until he was taken into detention was using his qualifications to work as an assistant in nursing in aged care.

   (c)In the event that the applicant is granted a visa, he will not be able to apply for Citizenship until 2022 at the earliest. This provides an added level of oversight of his behaviour by the Minister, since if he should re-offend, his visa could still be cancelled.

   (d)The applicant has expressed a desire to advance his studies in nursing and to continue working in health care, any further criminal offences would jeopardise any future employment prospects.

   (e)Direction No. 65 asks decision makers to assess the risk of harm in the context of the visa being applied for; in these circumstances the Applicant has applied for a protection visa and been found to be a person in need of protection and in such circumstances we contend that the risks, if any, that the Applicant may pose to the community are not unacceptable.

   (f)Therefore, this factor does not weigh against the Applicant.

   [2] Ibid at paras [73]-[78].

3. In respect of the expectations of the Australian community, the applicant concedes that the Australian community “has a legitimate expectation” that non-citizens who are granted the privilege of residing in this country will abide by and respect Australia’s laws and that persons who have committed serious crimes should generally be expected to forfeit such privilege.

4. The applicant further submits:[3]

   (a)Fair-minded members of the Australian community, who are apprised of all the facts of this matter and who understand the applicable law, particularly the requirements of Direction No.65, would not expect that the visa be refused.

   (b)The community would not expect a person to be returned to a country when he holds well-founded fears for his life and physical safety. While the community may disapprove of the Applicant’s conduct, the community would extend some leniency towards him in the circumstances of the particular offending, including the apparent lack of any physical harm to the victim, and in circumstances where the applicant’s need for protection increased as a result of having contracted HIV from his former partner, which exacerbated his mental illness, drove him to drug use and resulted in him suffering from psychosis which caused his offending behaviour. The community would be minded to allow the Applicant one more chance to demonstrate his clear ongoing commitment to his drug rehabilitation and to be a productive valuable member of the Australian community.

   (c)This factor does not weigh against the Applicant.

   [3] Ibid at paras [81]-[83].

   International non-refoulement obligations

5. The delegate recognised that Australia owed non-refoulement obligations to the applicant, stating:[4]

   (a)The Department has found that the applicant is a person in respect of whom Australia has non-refoulement obligations.

   (b)If the applicant’s application for a Protection visa is refused, he will be prevented by s 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa, and that in respect of a Protection visa, he will be prevented by s 48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s 48B that s 48A does not apply to him).

   (c)The statutory consequence of a decision to refuse to grant the applicant a Protection visa is that, as an unlawful non-citizen, the applicant would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, and in the meantime, detention under s 189. The delegate further noted that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   (d)Having regard to the existence of non-refoulement obligations in this case and having carefully weighed this factor against the seriousness of the applicant’s criminal offending in the making of a decision to refuse to grant the applicant a Protection visa.

   [4] Exhibit A, G-Documents, G5 at paras [50], [51], [52] and [55].

6. The applicant has submitted that an uncertain future lies ahead if the application does not succeed, stating:[5]

   [5] Exhibit D at paras [92]-[98].

   Indefinite detention

   (a)The first scenario would see the applicant subject to potentially indefinite immigration detention. He is currently detained in accordance with s 189 of the Act. Section 196 of the Act allows for his detention only until such time as he is removed from Australia, deported or granted a visa. The majority of the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37, held that the detention of a person in like circumstances could continue indefinitely. Since the Applicant cannot be returned to India, the only country in which he has a right of residency, and if he cannot be granted a Protection visa, he could be subject to indefinite immigration detention. Whilst lawful under Australian law, indefinite detention breaches Australia’s obligations under Article 9(1) of the International Convention on Civil and Political Rights (ICCPR) which relevantly provides:

   “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention…”

   (b)The Draft General Comment No 35 on Article 9 of the ICCPR identifies that “the notion of ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law”.

   (c)Therefore, whilst continued detention might be lawful under Australian law, it would become arbitrary and breach Australia’s international obligations when it continues beyond a period that can be appropriately justified.

   Third Country Processing

   (a)The second scenario would see the applicant sent from Australia to a third country where there would be no real risk that he would suffer feared serious harm. There is no evidence that there is a third country that could afford effective protection or that would be willing to accept him. However, even if such a country were identified, the hardship to the applicant of being sent to a country where he has no family links, no ties and potentially no grasp of language is also relevant.

   (b)It is contended that sending the applicant to a third country would not be in line with Australia’s protection obligations. While his removal to a third country might not fall foul of Australia’s non-refoulement obligations, it does not follow that Australia ceases to have protection obligations to him.

   Temporary Bridging Visa

   (a)The third scenario is that the applicant could be granted a temporary visa, such as a Subclass 070 Bridging (Removal Pending) visa. If it is accepted that he cannot be returned to India as discussed above, and there is no third country that can accept him, this visa, while temporary in nature, would in reality be permitting the applicant to remain in Australia indefinitely. It is unlikely that the Minister would be minded to grant a Bridging Visa that would essentially allow the applicant to remain in the Australian community indefinitely, thus again leaving him facing indefinite detention.

   (b)The applicant’s claims for protection are based on his homosexuality, HIV condition and mental health and as such, it can be reasonably expected that these fears will continue at least for his lifetime. Community attitudes towards homosexuals, and lack of state protection from harm in India is likely to take many decades to improve to a level whereby he would not face a risk of serious harm

   APPLICANT’S EVIDENCE

7. The applicant provided extensive oral evidence, principally in cross examination. He testified that he had completed his cooking course in approximately 2006 to 2008 and obtained a Certifcate 3 in commercial cooking. He undertook such course at the Windsor College in Sydney. He then immediately undertook a course in tourism at the same college and obtained an Advanced Diploma in Tourism and Hospitality. It appears that neither courses have been put to any commercial use. Instead, the applicant has been engaged in the nursing industry. In 2013 he worked as an enrolled nurse at [name] Hospital; and, between 2010 to 2014, he worked as a nurse at [name] Aged Care, followed by a period in which he worked for three months as a nursing assistant with [employer name]. Most recent employment was with [Organisation 1] in a nursing home at [deleted], a suburb of Sydney. The applicant commenced work in February 2016 and remained so employed until he was taken into detention.

8. The applicant formed a relationship with [Mr A], a former solicitor who is now the manager of a charity known as [name]. Both the applicant and [Mr A] resided together from approximately 2008 for a period of 4 to 5 years. Through such relationship, the applicant obtained work as a driver delivering food for [the charity].

9. The applicant gave a very different version of the relationship to that given by [Mr A]. The applicant stated that his partner was manipulative and controlling; that the partner objected to his friends coming to the house; that the partner would control all of the applicant’s movements and finances. [Mr A] denied all such allegations.

10. It seems that the relationship between the applicant and [Mr A] ceased when the applicant formed a new relationship with a man who the Tribunal will refer to only as “Greg”. The applicant met Greg at a sauna and ultimately moved into his home. The applicant stated that there were drugs throughout the residence, and in the car owned by Greg. On the applicant’s account, the relationship was turbulent. The applicant stated that he called the police a couple of times when Greg tried to hit him. However following the police attendance, the applicant decided, having been taken to a police station, that he would not proceed. The applicant claimed that Greg was “cheating” on him; was abusive; placed a satellite navigation system in his car. In fact the applicant did not own a car but rather the applicant drove the car owned by Greg.

11. The applicant acknowledged that in February 2015 he was apprehended driving Greg’s car. According to the police record, the number plate had been obstructed in such a way as to prevent detection. The applicant was found to have drugs in the pocket of his jeans and needles. The applicant said that when apprehended, he quickly placed the drugs and the needles in his pocket. However in the course of his evidence, the applicant stated that he understood it was legal to have drugs for one’s personal use. If this be accepted, it is impossible to reconcile the attempts he made to conceal drugs from the apprehending police.

12. In respect of the same incident, the applicant was charged because he did not hold a New South Wales drivers licence. The applicant claimed that it was legal for him to be driving using his Indian licence. Whilst there was some debate on this question, it is apparent from the evidence which was tendered that the concession which allowed an Indian driving licence, being an international licence, to be used whilst driving a motor vehicle in New South Wales, is confined to international visitors and that after a three month period, it is no longer lawful to rely upon such licence. It is unnecessary for the Tribunal to make any final determination on this question in the absence of full argument. Irrespective, the offences were found proved but the applicant, who failed to attend the Sutherland Local Court on 19 June 2015 subsequently appealed on the question of severity of the penalty imposed. On appeal the applicant was given the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). As a result, whilst no convictions were recorded, each of the offences were found proved.

1. In March 2015 the applicant committed offences involving the destruction of property, wielding a knife in a public place and on 1 June 2015, contravening the provisions of an Apprehended Violence Order. In respect of each offence the applicant was given the benefit of s 10 of the Crimes (Sentencing Procedure) Act (NSW).

2. On 29 February 2016 an offence of common assault, (three counts) was allegedly committed. However on appeal the charges were dismissed in accordance with s 32(3)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW). This incident arose at a hospital and related to the throwing of urine over nursing staff who were trying to restrain the applicant from leaving the hospital.

3. On 3 April 2017 the applicant was convicted of common assault (two counts). This offence involved the wielding of a knife. The applicant was convicted and orders were made for his rehabilitation.

4. The applicant produced approximately 15 references either in the form of a letter or statutory declaration in support of the applicant’s diligence and dedication. They include a report of Dr Matthew Currie, clinical psychologist dated 29^th of May 2015; a reference from Ms Fiona Magee, Counsellor, Stimulant Services of St Vincent’s Hospital dated 7 September 2017 and 1 September 2017; a report of Ruth Hennessey, Psychology Unit Manager/Senior Clinical Psychologist of The Albion Centre, Surry Hills dated 14 December 2015 and a second report dated 26 July 2017; a report of Dion Alperstein, registered psychologist of the Albion Centre dated 9 August 2016; a report of Prof Don Smith, Senior staff Specialist, HIV and Sexual Health of The Albion Centre dated 21 September 2017; references from staff of [Organisation 1] dated 14 July 2017 signed by [name], General Manager;  by [name], Care Manager;  [name] assistant nurse and [Organisation 1], [suburb deleted] dated 9 August 2017; Majak, [Mr A] of [the charity] HQ dated 21 August 2017.

   RELEVANT LEGISLATION AND MINISTERIAL GUIDELINES

5. Direction No. 65 was made on 22 December 2014 pursuant to s 499 of the Act. Its object is to provide guidance to decision-makers in assessing the exercise of powers under s 501 of the Act. As provided by cl 6.2, the first consideration under the heading of “General Guidance”, is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens.”

6. Under the heading “Principles”, it is stated in cl 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:

   “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.”

7. The Principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “harm that would be caused if it were to be repeated, maybe so serious, that any risk of similar conduct in the future is unacceptable.”

8. The principles also state that Australia has a low tolerance of any “criminal or other serious conduct.” And a low tolerance of any “criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”

9. It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The first Primary consideration identifies the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part A of the Direction. Pursuant to cl 9.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of non-citizens offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.

10. Pursuant to Part B of the Direction which relates to Primary Considerations, it is reiterated that there is to be a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct and the decision-makers required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see cl 11.1(1)(a) and (b). In assessing the nature and seriousness of the conduct, the Tribunal must consider, inter alia, “the cumulative effect of repeated offending”: see cl 11.1.1(1)(g).

11. Clause 11.3 makes provision for consideration of the expectations of the Australian Community. Clause 11.3(1) provides inter alia:

    “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.”

12. Section 501(6)(d) of the Act provides that 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 ss 501(6)(d)(i)-(v) of the Act.

13. Section 501(6)(d)(ii) of the Act provides that a person will not pass the character test if, in the event that the person were allowed to enter or remain Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia. The meaning of “harassment”, “molestation”, “intimidation” and “stalking” are by virtue of subparagraph (2) to be given their ordinary meaning and s 501(11) of the Act states that such conduct may include:

    “conduct that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person’s behaviour or alleged behaviour towards the individual, and any other individual, or in relation to their property or that of any other individual.”

    THE TRIBUNAL’S FINDINGS

14. The Tribunal acknowledges that the offences with which the applicant was charged have not resulted in any significant penalty. However, this is but part of the Tribunal’s consideration. With respect of all charges the offences were found proved. The offences were of a serious nature.

15. Any person who comes to this country seeking the right to remain in Australia is required to obey by the laws of this country. The applicant has failed to observe this essential requirement.

16. Each of the offences with which the applicant was charged carries potentially serious consequences. Whilst the applicant has been afforded the benefit of s 10 of the Crimes (Sentencing Procedure) Act or has been successful in obtaining leniency of the court in respect of other offences, the fact remains that the offences were proved although no conviction was recorded in respect of most offences.

17. Whilst the applicant seeks to explain away each charge on the basis that there were extenuating reasons for the offences, they cannot be considered in such a simplistic way. The assaults involving the wielding of a knife in a public place in 2015 knife arose in situations where, whilst it was a disagreement between himself and his partner, the risk of serious injury or harm was clear. The applicant ignored all requests to put down the knife and continued to cause disturbance until subdued.

18. The offence of using a motor vehicle without a licence, prima facie, does not appear to be potentially serious. However when the facts are considered it is clear that the defendant was involved in some illegal activity. The number plates of the car which he was apprehended, and which he was driving, were found to have been obscured so as to make detection of the number plate difficult.

19. More importantly, drugs were found in the clothing of the applicant, together with needles. The Tribunal can infer that the applicant was involved in illegal drug use.

20. Three assault charges were laid against the applicant arising out of his reporting to a medical facility known as the Marie Bashir Centre. When he resisted the instruction that he was to remain overnight in the facility, he became violent. The charges were dismissed on the basis of s 32(3)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW).

21. The last common assaults were committed on 3 April 2017. On this occasion convictions were recorded and a bond imposed together with directions for rehabilitation. The Court rejected the claim that the applicant was suffering from a psychotic episode. The police record shows that the applicant was affected by drugs at this time. It must follow that the treatment for drug rehabilitation which the applicant had undergone in 2016 appears to have been of no benefit, and the predictions of his referees who provided references prior to these offences were shown to be ill-founded.

22. The pattern of offending conduct displayed by the applicant has been one of disregard for the law and potential violence. In the decision under review, the delegate stated that the relevant ground of the character test in this case is s 501(6)(d)(i) of the Act. That is, is there a risk that the applicant will engage in criminal conduct in Australia. The delegate concluded that such risk existed in light of the criminal history when considered against the risk of him offending again in the future. The applicant’s psychologist Dr Ruth Hennessy states in her report of 15 October 2018 that the applicant is committed to substantial change and seems to be applying psychological strategies. However, psychological assessments have been provided since 2014 and in December 2015 and in March 2016 underwent drug induced psychosis. Despite such treatment the applicant reoffended in 2017.

23. The documentation provided in support of the applicant suggests that he is of good character. However, the issue before the Tribunal is whether, based upon the history of offences, there remains a risk that the applicant is likely to reoffend. The Australian Community expects that a visa applicant will be law abiding, as is stated in cl 11.3(1) of the Direction: see also Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

24. It is the issue of the criminal history of the applicant which is relevant in this application. The cumulative effect of all the offences, committed over the space of more than two years, demonstrates that the delegate was correct in the assessment made namely that there was a risk of the applicant offending in the future. The applicant committed the offences in 2017 in disregard of the obligations which attach to a successful visa application.

25. In respect of the other considerations referred to in Part B of Direction 65, the Tribunal observes that the applicant has no children in Australia. He has a child, now approximately 10 years of age in India with whom he has no communication. The applicant was married for a short period during one of his return trips to India but that marriage has now been dissolved.

26. The Tribunal now addresses the remaining considerations referred to in cl 12 of the Direction. The documents filed in support of the applicant’s application establish that the applicant has a personality disorder and fears that if he were returned to India, both his HIV status and homosexuality would lead to stigmatisation, discrimination, isolation and difficulty in accessing the HIV treatment. The applicant fears his health will deteriorate. There is also some evidence that the applicant has attempted suicide by taking an overdose of pills in the past whilst he was living with his allegedly dominating partner.

27. The applicant had claimed that both his father and mother had treated him poorly. However, in other evidence the applicant stated to the contrary. Insofar as the references refer to the plaintiff’s family history in India they must accordingly be treated with caution. Certain aspects of the applicant’s evidence are unreliable, as was confirmed by the testimony of the applicant’s former partner, [Mr A]. The Tribunal accepts his evidence. The subsequent partner, Greg, was not called as a witness and accordingly the allegations made against him have not been tested.

28. Irrespective, the Tribunal notes the applicant has a family in India, and that since his first arrival in Australia he has visited them on three occasions in India.

29. There is no evidence of any conduct referred to in cl 6.2(1) of the Direction, namely, harassment or molestation. However, considering the definition of that conduct as set out in paragraph [39] above, the Tribunal can infer that the applicant’s conduct of wielding a knife in a public place in March 2015, throwing urine over hospital staff in 2016 and wielding a knife in 2017 would have resulted in fear, harm, and distress. Further, it has been held that domestic violence is a serious matter: see Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]; Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918 at [48], cited with approval in Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728 at [57].

30. There is no impact on any business interest if the visa application is refused: see cl 12(1)(d) of the Direction.

31. These observations are made as part of the consideration of all aspects of the application now before the Tribunal. However, the Tribunal must apply the provisions of Direction No. 65 in reaching its decision.

    CONCLUSION

32. The Tribunal finds that the decision of the delegate was justified. In light of the criminal proceedings, involving the risk of violence, it would be quite impossible for any prudent decision-maker to hold that there was no risk of reoffending, or that the risk of reoffending was so low as to be discounted to nil. The paramount consideration is whether the interest of the Australian community is being protected. The risk of further offending by the applicant remains. The expectation of the Australian community is that the Visa application should be refused.

33. There are however important considerations to be determined. The applicant is being treated for HIV. The applicant states that he is receiving medication for his condition and the Tribunal accepts that this is so. Further, the applicant is a homosexual. These considerations give rise to questions of Australia’s responsibility in respect of non-refoulment obligations. The delegate found that the applicant is a person in need of protection.

34. It will accordingly be necessary for the Minister to determine the appropriate course in view of the decision of the Tribunal, and of the finding that the applicant is a person in need of protection as made by the delegate. In this respect the Tribunal draws the attention of the Minister to the decision of the Federal Court of Australia in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448.

    DECISION

35. The Tribunal affirms the decision under review.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

................................[SGD]...............................

Associate

Dated: 23 November 2018

Date(s) of hearing:	15 and 16 November 2018
Solicitors for the Applicant:	Ms A Stratigos, HIV/AIDS Legal Centre
Solicitors for the Respondent:	Mr  K Eskerie, Sparke Helmore Lawyers