BYJH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 44

BYJH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 44 (22 January 2024)

Division:GENERAL DIVISION

File Number:          2023/8092

Re:BYJH

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Rebecca Bellamy

Date:22 January 2024

Place:Brisbane

The decision under review is affirmed

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

Senior Member R Bellamy

CATCHWORDS

MIGRATION – Application for Bridging Visa pending determination of application for substantive visa (Protection visa) – where Applicant does not pass the character test – whether to exercise the discretion to refuse the Bridging visa application – consideration of Ministerial Direction No. 99 – protection claims lacking in substance – decision affirmed

LEGISLATION

Drug Misuse and Trafficking Act 1985 (NSW)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

SECONDARY MATERIALS

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

22 January 2024

1. The Applicant is a 27 year old citizen of Thailand. He initially came to Australia on a Student visa, but quickly dropped out part-way through his course of study. The visa later lapsed and thereafter he remained in Australia as an unlawful non-citizen. He worked illegally for cash-in-hand, meaning he did not pay income tax. He subsequently applied for a Protection visa (“PV”) and his application was refused. He sought review of that decision, and in the meantime, he performed some work in a large illegal marijuana growing operation, for which he was ultimately imprisoned. His application for review of the PV refusal decision was dismissed, and he appealed. Having lost the appeal, he appealed to a higher court. 

2. The Applicant recently applied for a Bridging visa E (subclass 050) (“the visa”) which would allow him to remain in the wider community, rather than immigration detention, pending finalisation of his PV application. His Bridging visa application was refused by the Respondent for failing to meet all relevant criteria under the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (“the Regulations”). He sought review in the Migration and Refugee Division of the Tribunal (“MRD”) and was successful. The application was remitted to the Respondent. The Respondent again refused the application, this time under s 501 of the Act. That decision is reviewable in the General Division of the Tribunal. The Applicant has sought review of that decision.

   VISA REFUSAL UNDER S 501(1) OF THE ACT

3. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In February 2022, the Applicant was sentenced to imprisonment for three years and two months with a non-parole period of one year and seven months. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

4. In applying s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.

5. For the purposes of deciding whether or not to exercise the discretion to refuse a visa under s 501(1) of the Act, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:

   ·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.

   ·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.

   ·The Australian community expects that the Australian Government can and should refuse entry to non-citizens 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 measurable risk of causing physical harm to the Australian community.

   ·Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non­ citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   ·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.

6. Paragraph 6 of the Direction provides that:

   Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

7. Paragraphs 8 and 9 of the Direction set out Primary Considerations and Other Considerations that the Tribunal must take into account. The mandatory considerations that are relevant to this matter are:

   Primary Considerations

   1protection of the Australian community from criminal or other serious conduct;

   2…

   3strength, nature and duration of ties to Australia;

   4…

   5expectations of the Australian community.

   Other Considerations

   (a)     legal consequences of the decision

8. The other mandatory considerations are not relevant because there is no evidence that the Applicant has engaged in family violence or that the outcome of the decision would affect the best interests of any minor children, any victim of the Applicant’s crimes or any business interests in Australia. Further, refusal of the visa would not result in the Applicant being removed to Thailand so Other Consideration (b), being the extent of impediments if removed, does not apply.  

9. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

10. I may also take into account other matters that are relevant to whether I should refuse the visa application. 

    BACKGROUND AND OFFENDING

11. The hearing of this application took place on 9 and 10 January 2024. The Asylum Seeker Resource Centre has been helping the Applicant with this matter but he was unrepresented in the hearing. He gave evidence by video-conference with the assistance of an interpreter. I found the Applicant’s evidence to be marred by evasiveness, fluidity and inconsistencies. Accordingly, I have accepted uncontroversial evidence given by him but where his evidence conflicts with other evidence, I have generally preferred the other evidence. Where the Applicant gave accounts that were mutually inconsistent, I have preferred the more plausible account. 

12. A cousin of the Applicant and three of his friends gave evidence by telephone. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. There were two documents written in Thai that the Applicant provided to the Respondent, but not to the Tribunal, prior to the hearing. He did not provide the English translations. Those documents were not admitted into evidence and I have not had regard to them. 

13. The Applicant was born in Thailand in 1996. His father left the family when he was a child, and his mother went to South Korea for work. She sent money to his grandmother who looked after him. He left her home to attend tertiary education in a different town in Thailand.

14. In June 2017, the Applicant applied for a student visa. In his application he indicated that he wished to study in Australia to improve his English skills so he could improve his career prospects in Thailand. He did not indicate anywhere in the application that he was open to remaining in Australia long-term. With respect to his financial position, he said: 

    “My mother will be a major sponsor for my study in Australia. She would be responsible for my tuition fees and living expenses while I am in Australia. My mother will continue to support me until I finish my studies.”[1]

    [1] Exhibit R2, page 151.

15. Under the heading “Please provide evidence of your ties to your home country or usual country of residence that shows that you have significant incentives to return home at the end of your stay in Australia” he wrote:

    “I consider my career goal to be my personal tie to my home country. As I have described above, I will look for a job in the energy industry in Thailand…My career objective is to improve my English skills, find a good job and then relocate my work back to my hometown within 2-3 years…

    In addition, the other ties to my home country are my family, friends, connections, and community in Thailand…I am always happy when I am surrounded by family and friends. I never considered living in another country except to study and train. I can guarantee my return to Thailand after I have successfully completed my proposed courses.”[2]

    [2] Exhibit R2, pages 152 to 153.

16. In the hearing, when giving evidence about his protection claims, the Applicant said that, at the time he made the student visa application, he was thinking of going to Australia and doing different courses and fulfilling the requirements to become an Australian citizen to stay here long term.[3] This evidence is inconsistent with what he wrote in his application, but consistent with his subsequent efforts to remain in Australia, indicating that he was not truthful in his application. When asked about this discrepancy, he said he had made the Applicant through an agent, and he had not told the agent that he was in danger in Thailand. They recommended this approach.[4] He denied he had lied, saying that returning to Thailand was an option he had at that time, but it was preferable to stay in Australia.[5] However, he did not represent in the application that returning to Thailand was merely an option and his preference was to remain in Australia. I am satisfied that he deliberately misled the Australian Government about his intentions in coming to Australia, and that he sought to mislead the Tribunal about having misled the Government.  

    [3] Transcript, page 31, lines 13 to 18.

    [4] Transcript, page 31, lines 29 to 34.

    [5] Transcript, page 32, lines 1 to 6.

17. The Applicant was granted a Student visa and he arrived in Australia in July 2017. According to the Applicant, his mother lent him around $10,000 for his student visa, airfares and other costs associated with coming to Australia. She had to borrow money from relatives in order to do that.[6] Clearly, she was not in a position to pay his living expenses for six months while he was in Australia, contrary to what he wrote in his application.

    [6] Transcript, page 107, lines 12 to 28.

18. The approved course of study ran from 7 August 2017 to 9 February 2018 with fees payable in July and November.[7] The Applicant paid in advance for the first term, and in November 2017 he paid the fee for the second term.[8] He was working part-time while studying. The Student visa limited the number of hours he could work.[9]

    [7] Exhibit R2, page 144.

    [8] Transcript, pages 36 to 37.

    [9] Transcript, pages 125, lines 4 to 20.

19. A little while after arriving in Australia, the Applicant’s bag was stolen, and he reported it to the police. The bag contained his wallet, phone, passport and other personal possessions.[10] He obtained a replacement passport about a month later, in September 2017.[11]

    [10] Transcript, page 35.

    [11] Transcript, page 104.

20. The Applicant said he stopped studying in January 2018,[12] although he had previously told the MRD he stopped in 2017 after three months of study, which would have been November 2017. He told the MRD he stopped because his belongings were stolen and as a result he experienced financial difficulties. He tried to go back to study but it was difficult.[13]

    [12] Transcript, page 37, lines 20 to 28.

    [13] Exhibit G1, G-documents, page 35.

21. In the instant hearing, he initially said that after the robbery he did not have enough money to pay for his course fees, rent and food.[14] However, he did pay the course fee in November 2017, he had the same job that he had previously managed to survive on – although he said his hours fluctuated – as well as savings. He said he did not want to be constantly dipping into his savings and he wanted to save to complete studies later on.[15] He got a job as a kitchen hand in addition to his existing part-time job.[16]

    [14] Transcript, page 36, lines 1 to 4.

    [15] Transcript, page 37.

    [16] Transcript, page 125, lines 12 to 16.

22. In March 2018, the Applicant’s Student visa expired and he became an unlawful

    
    

    non-citizen in Australia. He was aware of this, but he remained in Australia and did not contact the Respondent’s Department to resolve his immigration status.[17] He kept working, receiving cash in hand. About that, he said:

    “Technically, yes, I was here illegally, but my attitude is that I needed to do everything I could to try to help myself not to be depending on other people at the time, so I had to really put a lot of effort into trying to support myself.”[18]

    [17] Exhibit G1, G-documents, page 22; transcript, page 125, lines 28 to 31.

    [18] Transcript, page 125, lines 30 to 35.

23. In November 2018, the Applicant applied for a PV. I will address this later in these reasons. As a result of applying for a PV, he was immediately granted a Bridging C (class WC) (subclass 030) visa (“BV-1”). The BV-1 did not allow him to engage in paid employment.[19] However, he continued to work, still not paying income tax. He had enough money to be able to send amounts of $100-$200 back to Thailand between 10 and 20 times before he was incarcerated in 2022.[20] 

    [19] Exhibit G1, G-documents, page 22.

    [20] Transcript, pages 106 and page 107, lines 1 to 4.

24. In April or July 2020 (it is not clear), the Applicant was granted a BV that permitted him to work (“BV-2”).[21] He then applied for a tax file number.

    [21] Exhibit G1, G-documents, pages 22 to 23.

25. In January 2020, his PV application was refused on the basis that he was not a refugee or entitled to complementary protection. In February 2020, he applied for review of that decision in the MRD.

26. In October 2020, due to COVID-19 lockdowns, the Applicant’s working hours were reduced to two days per week.[22] He saw an advertisement on the internet for a job at a farm. He consulted a friend about it and then he applied. He understood that he would be paid $200 per day for two weeks. On 5 October 2020, he was taken to the property and he cleaned out the place where he would be living. He claimed he did not know anything illegal was going on.[23] However, the farm was a huge cannabis growing operation, with 4058 cannabis plants. A large commercial quantity per Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) is 200 plants.[24]

    [22] Transcript, page 47.

    [23] Transcript, page 45, lines 33 to 36.

    [24] Exhibit A2, page 13.

27. On 7 October 2020, the Applicant started the job. His duties were to clean and spread fertiliser. According to the Judge who ultimately sentenced the Applicant for his role in the operation, on 8 October 2020, he received a text message from another farm worker that said:

    “We are very comfortable here. You need any help just ask us. You like to eat or drink or whatever you need. You do not have to pay. You know this is illegal. So don’t tell anyone you work here. And the salary of the owner will pay you not full. Delete this conversation.”[25]

    [25] Ibid.

28. The Applicant continued to work on the farm. On 23 October 2020, the police raided the farm, seized cannabis with an estimated value of $12.17 million, and arrested several people including the Applicant.[26] The Applicant was remanded in custody.

    [26] Ibid.

29. In November 2020, the Applicant failed to appear at the MRD hearing concerning his PV application, and as a result his application was dismissed. He blames the Respondent for not advising the MRD that he had been taken into custody and was therefore not contactable at the email address he had previously provided. On this basis he appealed to the Federal Circuit and Family Court (“FCAFC”). In November 2021 he lost that appeal and in December 2021 his BV-2 ceased.

30. In February 2022, the Applicant was convicted of knowingly taking part in the cultivation of not less than the large commercial quantity of cannabis between 8 and 24 October 2020, and sentenced to imprisonment for three years and two months with a non-parole period of one year and seven months (from the day he was remanded in custody). He pleaded guilty on the day his trial was to commence and he was represented by Counsel in the sentencing proceedings. That occurred some three months after some co-offenders had been convicted and sentenced for their roles in the operation after they entered early guilty pleas. An offence of dealing with property suspected to be the proceeds of crime was also taken into account. This offence concerned cash in the amount of $6,305 that was found in Applicant’s possession.[27] 

    [27] Exhibit A2, page 11.

31. The learned sentencing Judge observed that offences involving the cultivation of a large commercial quantity of cannabis plants are “objectively most serious”, and he described the operation as a sophisticated and large cultivation. He said there was no evidence that the Applicant stood to profit from the sale of the harvested cannabis, and he was not satisfied beyond reasonable doubt that any payment he received or was to receive was other than modest. He characterised the Applicant’s role as that of “simply a labourer” or “crop sitter”. His Honour said it seemed the Applicant became involved in the cultivation when, due to the COVID-19 pandemic, he lost his job and was without income. However, it is not correct that the Applicant lost his job, and I do not have to accept that he did, as the learned Judge’s comment was made in passing and was not an essential finding with respect to the sentence His Honour imposed.[28] 

    [28] Had it been an essential finding, HZCP v Minister for immigration and Border Protection [2019] FCAFC 202 would have required the Tribunal to accept it.

32. A New South Wales Department of Corrective Services (“Corrective Services”) case report dated in March 2022 recorded that the Applicant said the job had been recommended to him, all he had to do was carry the fertiliser from the green house to the back of the greenhouse so the police did not see, and move cut pot plants to the back of the greenhouse. He said he had needed money and was not aware of the illegality of what he was doing.[29]

    [29] Exhibit R2, page 15.

33. In April 2022, the Silverwater Parole Unit conducted a review of the Applicant which was partly based on information he provided in an interview (with the assistance of an interpreter).[30] He said he was employed at the time he took the farm job but his working hours had been reduced and he was not able to seek financial support from anyone due to his family residing overseas and living a harsher lifestyle there. He was desperate for employment to fund his stay in Australia. The farm job provided free accommodation with all bills and food paid for. He said a friend had recommended the job, and had it not been for his acquaintances he would not have known or engaged in the offence. He said he would no longer have any contact with the acquaintances who had recommended the job.

    [30] Exhibit A2, pages 25 to 30.

1. The review also noted that the Applicant was willing to undertake intervention to address his offending although he was not eligible for any programs. He had not had any misconduct charges, and he had engaged well in employment. He was assessed as a low risk of
   re-offending according to the level of Service Inventory – Revised (“LSI-R”) which is an actuarial tool used to estimate risk of recidivism. It is not apparent who conducted the assessment and what the person took into account. Clearly, if they took into account information that was incorrect that would undermine the reliability of the assessment.      

2. On 22 May 2022, the Applicant was granted parole and transferred to immigration detention.

3. In June 2022, the Applicant told an International Health and Medical Services (“IHMS”) counsellor that he had been wrongfully charged and convicted for growing cannabis plants and he had been advised by a lawyer to plead guilty. He said he did not know he was working in an illegal cannabis farm. He also claimed he was not paid any wages.[31]

   [31] Exhibit R2, page 201.

4. Notes made by a counsellor in August 2022 indicate that the Applicant claimed he was innocent and he had not committed any wrongdoings. He said the money that was confiscated had been earned by him from working in a warehouse and he did not deposit the money in the bank as his card had expired.[32] In the instant hearing he gave a different reason for having the cash in his possession, which involved him withdrawing that amount from his bank account rather than not having deposited it in the first place.     

   [32] Exhibit R2, page 192.

5. In April 2023, the FCAFC affirmed the MRD decision concerning the PV application. In May 2023, the Applicant appealed to the Federal Court and, pending the outcome of that appeal, he applied for a Bridging visa, which is the subject of this application.

6. The Applicant was interviewed with respect to the visa application with an interpreter assisting and a legal representative present by telephone. The decision record indicates that he said an acquaintance of his had “offered” him work on a farm in exchange for accommodation and food. The role was to clean the facility and fertilise the plants. He took the farm job after the business he worked for closed down and he lost his job, becoming unemployed. Prior to his arrest he had no idea he was involved in the illegal cultivation of cannabis.

7. In the instant hearing, he said a person invited him to do the job, saying “Well, why don’t you give this a go.” But they did not tell him it was an illegal farm or dealing with illegal products. When reminded that he said, in a statutory declaration, that he saw the job online, he agreed and said he had consulted a friend who said “Yes, why don’t you give it a go”.[33]

   [33] Transcript, page 123.

8. When it was put to the Applicant that the version he gave in the interview seemed intended to lessen his responsibility by suggesting that a friend arranged for him to work there, he claimed that he did explain in the interview that he found the job on the internet and that he asked a friend who had worked on a farm about it. However, that is not what is recorded in the decision record. I am satisfied that in the interview, and in some of his evidence in the instant hearing, the Applicant sought to shift some of the responsibility for his being at the farm onto someone else.  

9. The delegate of the Minister refused to grant the visa because he was not satisfied that the Applicant would abide by a discretionary visa condition that would have been attached to the visa, being “must not engage in criminal conduct”[34]. Therefore, he did not satisfy clause 050.223 of Schedule 2 to the Regulations which is: ‘The Minister is satisfied that, if a bridging visa is granted to the Applicant, the Applicant will abide by the conditions (if any) imposed on it.’[35] 

   [34] Condition 8564.

   [35] Exhibit G1, G-documents, page 26.

10. The Applicant sought review of that decision, and in May 2023, the MRD held a hearing in which the Applicant was assisted by an interpreter. The decision record indicates that the Applicant told the MRD that due to COVID he did not have much money. He admitted that he had been told the job was unlawful but he continued working because he wanted to be paid for the work he had done.[36] He did not mention that he had only done, at most, two days of work at that point.  

    [36] Exhibit G1, G-documents, page 35.

11. In June 2023, the MRD remitted the visa application to the Respondent with a direction that clause 050.223 of the Regulations was met.[37] Part of the reason the Respondent refused the visa under s 501(1) of the Act was that there is a risk of further offending. It was contended on behalf of the Applicant that the Respondent is bound by the MRD’s direction and therefore is prevented from refusing to grant the visa on the basis of a risk that the Applicant will engage in criminal conduct. I respectfully do not accept that for the reasons that follow.

    [37] Exhibit G1, G-documents, page 40.

12. The initial assessment of the visa application concerned whether the Applicant satisfied the necessary criteria. The MRD’s decision required the Respondent to re-conduct that assessment on the basis that clause 050.223 was met. Section 501(1) of the Act is not concerned with whether qualifying criteria are met. It provides a discretion to refuse a visa regardless of whether qualifying criteria are met. One factor that is relevant to the exercise of the discretion under s 501(1) is the risk of re-offending. It may seem anomalous for the Respondent to make a finding that there is a risk of re-offending when the MRD decision directed that there is not. However, that direction applies to a different decision-making process. Therefore, I am not satisfied that, as a matter of law or fairness, the Respondent or Tribunal is precluded by the MRD direction from refusing the visa under s 501(1) of the Act relying on, in part, a finding that there is a risk of further offending. Further, with the utmost respect to the MRD Member who made that decision, nor is the Tribunal influenced by the MRD’s risk assessment because it is substantially based on lies told by the Applicant. In any event, in this case, even without a risk of re-offending, application of the Direction would favour refusal to grant the visa. This is evident in the weightings I have allocated to the factors I have to consider and explained in the concluding paragraph of this decision.

13. In July 2023, the Applicant made a statutory declaration. In it he repeated that he had lost his job in October 2020 and become unemployed. He chose to stay at the farm and work even though it was illegal because he felt desperate for money. He was blinded by how desperate he felt. He was assured that the person who brought him would return, pay his wages and drive him back. This further compelled him to stay because he thought he would only get paid if he stayed.[38]

    [38] Exhibit G1, G-documents, page 56.

14. In the instant hearing, he said “I was already owed money, so I just wanted to get paid and then leave”.[39] However, contrary to what he said in the MRD hearing, he indicated he wanted to be paid for the 14 days that had been agreed: he considered he was owed $2,800. He said $2,800 plus the $6,300 he already had would be a good sum of money to pay rent and other expenses.[40] In my view, there is an important distinction between staying there to wait for payment for work already done and continuing to work in an illegal enterprise to earn more money. 

    [39] Transcript page 131, lines 14 to 20.

    [40] Transcript, page 46.

15. When asked why he kept doing something he knew was illegal, the Applicant said he did not consider his work to be illegal as he was not involved in the illegal trade of cannabis, but only in house cleaning. However, the Applicant was sentenced on the basis that he was a labourer/crop sitter. In the instant hearing, he initially said he cleaned the farm and he took fertiliser to “spread it out”.[41] When asked later, “So when you were putting fertiliser on the marijuana plants, did you think you weren’t doing anything illegal?”, he said his work involved a mixture of used fertiliser, leaves, stalks and things which had been thrown away. It was put in a truck and dumped. He denied that he had put fertiliser on the plants.[42]

    [41] Transcript, page 44.

    [42] Transcript, pages 46 to 47.

16. When the Applicant was asked why he had given two different versions, he denied having said he put fertiliser on the plants. He also denied having said, in the bridging visa interview, that he fertilised the plants, claiming he said he threw fertiliser away in the rubbish. He then said he took pots with small plants in them from a confined space to a more open space.[43] I am satisfied that the Applicant fertilised marijuana plants and that he denied it in an effort to downplay the extent of his own involvement in the illegal enterprise.    

    [43] Ibid.

17. I will now address the $6,305 that the police found in the Applicant’s possession. In the instant hearing, he said he had saved the money over the years from working, and he was able to use it during the COVID lockdown. It was seized because he did not have records of having earned it legitimately.[44] He explained that he had the cash with him rather than in the bank because his ATM card had expired, a new card was not issued in time and he needed to have access to his money to pay bills. He did not explain why he could not use electronic funds transfers to pay bills, or why he needed that much cash, or indeed any cash, in his possession while at the farm where all expenses were covered.[45] I find his explanation for having the money in his possession implausible. Consistent with the court’s finding, I suspect it was proceeds of crime.

    [44] Ibid.

    [45] Ibid.

    THE APPLICANT’S EVIDENCE ABOUT HIS FATHER

18. The Applicant has made several representations about his father and they cannot all be true. While the relationship he had with his father is not directly relevant to the visa application, his evidence about it displays a preparedness to mislead the Government and the Tribunal, which is relevant to the reliability of his evidence in general and his risk of committing offences involving dishonesty.

19. In the instant hearing, the Applicant said he got in touch with his father about a year after coming to Australia. Since then, they had been in regular contact, and in 2019 and 2020 he had sent money to his father multiple times. He also sent some after he was released from gaol.[46] He would transfer the money to his friend’s account in Thailand and his friend would pay his father. Their last contact occurred a few days before his father’s death in October 2023.[47]

    [46] Transcript, page 21, line 40 to page 22, line 15; page 54, lines 1 to 13.

    [47] Transcript, page 21, lines 40 to 45.

20. However, until a week before the hearing, the Applicant had consistently represented to the Respondent’s Department that he had no connections in Thailand and no contact with his father. For example, a Corrective Services case note dated in March 2022 recorded that the Applicant said his grandmother raised him in Thailand until he finished year 9 and he did not know anything about his father.[48] A case note in May 2022 noted that the Applicant had no family or support in Thailand.[49] An IHMS case note made later in May 2022, after the Applicant was transferred to immigration detention said “no contact with dad”.[50] The Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (”STARTTS”) psychological assessment dated in July 2022 recorded that “He does not know his father’s whereabouts as he left him when he was very young.”[51]

    [48] Exhibit R2, page 15.

    [49] Exhibit R2, page 12.

    [50] Exhibit R2, page 211.

    [51] Exhibit G1, G-documents, page 77.

21. In the hearing, the Applicant explained that comment by saying his father moved around with his work and the Applicant never asked him where he was. When he was asked how his friend could pass money to his father if he did not know where he was, the Applicant said his friend transferred the money to his father’s bank account.[52] However, the note said the Applicant did not know his father’s whereabout because he left him when he was young, not because he moves around with work. Further, he did not explain why, if the money was transferred to his father’s bank account, it could not be transferred directly by him rather than through his friend’s account.

    [52] Transcript, page 112, lines 34 to 44.

22. A counsellor’s note dated in November 2023 recorded that the Applicant said “I have nothing there and no one there…”, referring to Thailand.[53] To explain this comment, the Applicant said at that time he was not able to communicate with his my father because he was in prison.[54] However, at that time, the Applicant was in immigration detention.

    [53] Exhibit R2, page 182.

    [54] Transcript, page 113.

23. There is before me a document that purports to be a report made to Thai police by the Applicant’s father in April 2023.[55] The Applicant gave evidence that he had asked his father to talk to the Thai police.[56] 

    [55] Exhibit A3.

    [56] Transcript, pages 49, 50 and 114.

24. Five weeks after the date of the report, the Applicant attended the MRD hearing. The MRD’s decision record states that the Applicant had said he had not had any contact with his father since childhood and that he had no close family in Australia or Thailand. When asked if he told the MRD that he had not had any contact with his father since childhood, the Applicant was very evasive and gave non-responsive answers even after being directed to answer the question that was asked.[57]  

    [57] Transcript, pages 110 to 111.

25. A week before the hearing, the Asylum Seeker Resource Centre filed the police report along with a document that purported to be a Thai death certificate naming his father as the deceased, dated in October 2023.[58] There are some details in the document that call into question its authenticity but I make no finding either way. 

    [58] Exhibit A4.

26. The Applicant denied that he had deliberately given the impression that he did not have a relationship with his father to help his prospects of getting a PV. Whatever the reason, I am satisfied that he sought to mislead the Government over a prolonged period.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

27. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. 

28. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:

    (a)the nature and seriousness of the Applicant’s conduct to date; and

    (b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

29. Here I am to consider the Applicant’s criminal offending or other conduct, having regard to factors specified in paragraph 8.1.1 of the Direction as far as they are relevant.

30. The index offending is clearly very serious, as described by the learned sentencing Judge and reflected in the penalty of more than three years imprisonment. The Applicant was a

    
    

    low-level participant, but his work contributed to the operation that produced marijuana. 

31. One relevant factor is that the Applicant has provided false and misleading information to the Respondent’s Department, for example with respect to his father. Another example is that in his PV application he said he was unemployed, support by family and savings.[59] This was not true as he consistently worked while in Australia. He was given that application to check and approve. A third example is his claim in his bridging visa interview that prior to his arrest he did not know he was involved in the illegal cultivation of cannabis.

    [59] Exhibit R2, page 54.

32. The Applicant’s other conduct includes abandoning his studies only months after arriving in Australia, remaining in Australia while an unlawful non-citizen, and working illegally for cash.     

33. The nature and seriousness of the Applicant’s offending and other conduct weighs in favour of refusing to grant the visa. The weight I allocate is between low and moderate. 

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

34. The Direction stipulates that in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to the following relevant matters, cumulatively:

    ·the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct;

    ·the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account:

    oinformation and evidence on the risk of the Applicant re-offending; and

    oevidence of rehabilitation achieved by the time of the decision;

    ·whether the risk of harm may be affected by the duration and purpose of the Applicant’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

35. In terms of the harm from repeat offending, the learned sentencing Judge said, of cannabis:

    “…regard should be had to the drug’s potential for harm in both direct and indirect ways in that drug cultivation and drug dealing does not simply dispense or produce or cultivate illegal drugs but is at every level associated with criminal conduct and leads to other forms of crime.”[60]

    [60] Exhibit A2, page 18.

36. In that regard, it is common knowledge that cannabis is a “gateway drug”, leading some users to use more harmful drugs. Cannabis cannot be produced on such a large scale without the involvement of low-level labourers like the Applicant. However, I do not think the risk of further offending is limited to repeated involvement in cannabis production. The Applicant has a history of disregarding regulatory laws and taxation laws. I am satisfied that the risk of re-offending is a general risk that includes involvement in illegal schemes and financial and regulatory crimes albeit at a low level. The potential harm includes physical, psychological and/or financial harm.

37. I do not have the benefit of independent expert evidence about the risk of re-offending. The learned sentencing Judge described the Applicant’s rehabilitation prospects as reasonable, and the parole report assessed the risk as low but the report is not persuasive for the reasons given above.

38. There is no evidence that the Applicant has any criminal history in Thailand, or that he has been charged with any offence except for the index offending in any place in Australia. He has behaved well in prison and immigration detention.

39. The Applicant said, in his statutory declaration, that he will not engage in further criminal activity. He said he has contemplated his past actions while in prison and detention and he knows his behaviour is unacceptable. He acknowledged the wrongful nature of his past conduct and apologised for it. He expressed an intention to turn his life around and actively contribute to Australian society.[61] In the instant hearing he expressed remorse for breaking the law by working at the farm, and he said he would not “intentionally, knowingly” get involved in illegal work.[62] He said his arrest and conviction had brought shame on his mother (as his arrest was on news footage that was disseminated on social media) and shame on him and he does not want that again.[63]

    [61] See generally, Exhibit G1, G-documents, page 57.

    [62] Transcript, page 129, lines 24 to 30.

    [63] This footage was viewed by the Tribunal and Respondent.

1. However, it is readily apparent from the Applicant’s past actions and his evidence in the instant hearing that he thinks it is sometimes acceptable to break Australian laws. Further, he seems to have some difficulty accepting that he has done the wrong thing and taking full responsibility for his choices. For example, when complaining about the length of his prison sentence, he said “I have been trying to be a good citizen and be of benefit to Australian society. Trying not to do the wrong thing”[64] which shows poor insight. He has also demonstrated preparedness to provide false information to help his cause.

   [64] Transcript, page 124, lines 35 to 46.

2. The Applicant denied that he would break Australian law to gain a benefit. He claimed his objective is to work and earn money to be able to live a good, safe life. He wants to use every legal means to be able to stay in Australia and not engage in deceit. However, he followed that by indicating that after he found out the operation was illegal he was trying to leave, which is not accurate as he had decided to work for the agreed period in order to be paid and there is no evidence that he had tried to leave earlier than that. He continued ‘It’s just that the police happened to come before I could leave. If they hadn’t come right at that time, then I would have got out and carried on with my life’.[65] This suggest to me that his regret is more about getting caught than engaging in illegal activity. 

   [65] Transcript, page 135.

3. Three of the Applicant’s friends provided letters[66] and gave evidence. It was apparent that much of their evidence was based on information the Applicant had given them. They all spoke well of his character in their letters.

   [66] Exhibit A2, pages 2, 4, 8 to 9, 31 to 35.

4. “Ms P”, a friend who has known the Applicant since childhood, said the Applicant told her he was just dealing with rubbish at the cannabis farm and had nothing to do with buying or selling drugs. When told the Applicant was convicted of knowingly taking part in cultivating a large, commercial quantity of cannabis, she was still prepared to vouch for his character, and continued to insist that he did not know what was going on. “Mr N”, a permanent resident, met the Applicant in immigration detention after he had served his own term in prison. He said the Applicant helped him to stay out of trouble. “Ms M”, a permanent resident who has known the Applicant for many years, indicated in her statement that the impression she got of the Applicant was that he was providing financial support to his family in Thailand. However, all she knew was that on one occasion he had transferred $200 to her account and asked her to transfer it to his nephew’s account.

5. The Applicant’s cousin made two statements and gave oral evidence. In one statement she said the Applicant was not involved in drugs. That is because he told her he did not know what was going on at the farm. She thought he was more mature now, having had time to think about the impact of his behaviour. However, she also said he does not think things through properly, and that sometimes after seeking advice, and receiving it, he does what he thinks anyway.

6. I agree with the Respondent’s submission that family and friends are expected to make the most favourable assessment about a person. While I can accept that the Applicant has many positive aspects to his personality, the witnesses did not display sufficient knowledge of his life in Australia and his offending to give reliable evidence concerning the risk of future offending.

7. The Applicant has not completed any targeted rehabilitation, and his provision of inaccurate information to counsellors undermines any rehabilitative effect that his counselling sessions could have had for him. He has not spent any time in the community since being arrested in 2020.

8. The Applicant has between $1,000 and $2,000 in savings after his cousin sold his car for him. However, he owes her around $4,000.[67] If he gets the visa, he can stay with her on a temporary basis until he gets a job and finds a place to stay.[68] His other friends who gave evidence have also offered to take care of him. If he gets the visa, he will be in a worse financial position than he was when he decided to engage in illegal activity for payment. His financial position is a risk factor for further offending.

   [67] Transcript, pages 108 and 126.

   [68] Transcript, pages 127, 128, 162 and163.

9. I am satisfied that there is a real risk that the Applicant will re-offend, probably at a relatively low level but possibly as part of a serious criminal enterprise.

10. The risk is not mitigated by the likelihood that the visa would only permit the Applicant to be in the community for a short period, because that is not the case. If the Federal Court remits the review of the PV refusal to the MRD, then it would be allocated “next highest priority”[69] which could still involve a wait time of several months.[70] A favourable MRD decision would see the PV application remitted to the Respondent for further consideration, while an unfavourable one could result in further appeals. If the Federal Court dismisses the Applicant’s appeal, the Applicant could try to appeal that decision, and the Asylum Seeker Resource Centre has forecast on his behalf that he will apply to the Minister for leave to make a further application for a PV.[71] Indeed, the Applicant expressed an intention to stay here and “fight” for as long as he can to get a visa.[72]    

    [69] In the last financial year, the MRD reported that 50% of Protection visa reviews were finalised within 1577 days. See  

    [70] See the discussion of the President’s instructions under Other Consideration (a).

    [71] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 44.

    [72] Transcript, page 60, lines 30 to 48.

11. Despite the Applicant’s claims to fear harm in Thailand, his claims of innocence, and the negative impact detention is having on him, I am not satisfied that there are strong or compassionate reasons for granting the visa. My reasons for that conclusion can be found throughout this decision. 

12. This Primary Consideration weighs in favour of exercising the discretion to refuse the visa. It attracts moderate weight.    

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

13. For the sake of continuity, I will address this Primary Consideration before addressing Primary Consideration 3.

14. 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 he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[73]

    [73] Paragraph 8.4(1) of the Direction.

15. A visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.

16. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[74]

    [74] Paragraph 8.4(3) of the Direction.

17. Paragraph 8.5(4) of the Direction provides that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated without independently assessing the community’s expectations in a particular case.

18. The Applicant knowingly assisted in a very serious criminal operation. He did it for financial gain in circumstances where he had thousands of dollars in his possession and therefore not experiencing financial hardship. He had previously stayed in Australia, and worked, illegally. While there is not an unacceptable risk that he may engage in serious conduct, he has engaged in serious conduct in breach of the expectations of the Australian community,

19. It was contended on the Applicant’s behalf that I should take into account, under this Primary Consideration, the community’s understanding of the hardships faced during the COVID-19 lockdown, the Applicant’s ongoing and prolonged detention and the numerous findings he would not re-offend. There is only one finding that the Applicant would not re-offend[75] and it is undermined by the fact that it was partially based on lies he told. There is no evidence that the Applicant was experiencing any hardship when he offended. The Applicant’s detention is relevant to Other Consideration (a) and that is where I will address it and allocate weight accordingly.  

    [75] The MRD decision.

20. Even without an unacceptable risk of future serious conduct, Primary Consideration 5 weighs moderately in favour of refusing to grant the visa.      

    PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

21. The Applicant does not have any family who have the right to reside in Australia permanently. However, he has a cousin in Australia who is a temporary resident.[76] She has lent him money, including money he has spent on visa applications, and she gave evidence in the instant hearing. I accept that there is a familial relationship of substance between them. She may be adversely impacted if he does not get the visa because he may ask to borrow more money from her. However, there is no evidence that she would lend him money if it would cause her hardship.

    [76] Exhibit G1, G-Documents, page 13.

22. The Applicant has some close friends in the Australian community, who have the right to remain here permanently, being the friends who gave evidence. I am prepared to accept that he has other friends in the community who may or may not have the right to remain here permanently. There is no evidence that he is connected to the Australian community through any other ties such as clubs or associations. 

23. The length of time the Applicant has resided in Australia is relevant, and it should be given more weight if he contributed positively to the Australian community in that time. Less weight should be given where he was not ordinarily resident in Australia during his formative years and he began offending soon after arriving in Australia.

24. The Applicant was born in 1996. He has been here since July 2017. He did not spend his formative years here. The Applicant he has contributed very little to the Australian community in that time. He has not done any voluntary work and, while he has held gainful employment in the community, his contribution through the payment of income tax is limited. He was consistently employed, and was a good worker, while in prison. He once helped a lady who was being pickpocketed.

25. The Applicant committed the index offence a little over three years after he arrived in Australia.

26. This Primary Consideration attracts low weight against exercising the discretion to refuse to grant the visa.

    PROTECTION CLAIMS

27. The bridging visa application was made on the basis of the PV application. In the hearing I asked the Applicant to explain the basis of his protection claims. According to him, as he was leaving a snooker hall in Thailand, he saw a group of people in a laneway and one person handed another a package. He thought the package might have contained drugs so he rode his bike out of the lane and reported it to the police. He did not know who the people were or what happened after that. The Applicant estimated that this happened towards the end of his final year of study at a vocational college, in March or April 2017.[77]

    [77] Transcript, pages 22 to 23; pages 102 to 103; page 130.

28. Shortly afterwards a man wearing a motorbike helmet cut in front of him and threatened him with a gun. He demanded 40,000 Thai Baht from the Applicant because he had interfered with his business. The Applicant told him he did not have that sort of money as he was a student. He told him to ask relatives to help. The Applicant claimed that the “implication” was that the man would constantly harass him if he did not pay. He does not know how the man knew who he was or where he went to college.[78]

    [78] Transcript, pages 24, 25 and 131.

29. On 8 or April 2017, he was forced into a laneway by a man on a motorbike who had a passenger, and they threatened and physically attacked him. This time he reported it to the police, but they merely wrote it down and did not take any action. After that, he would see a man on a motorbike where he went, as if being followed, and sometimes there was a van nearby. The Applicant referred the Tribunal to some country information that indicated that Thailand has no dedicated legal protections for people who draw attention to corruption or criminal activity.[79] 

    [79] Exhibit R3, page 20.

30. The Applicant claimed that in May 2017, he went to a different province where he initially stayed with a cousin and her family. He later he moved into his own apartment there, paid for by his mother. He stayed for around a month. He had initially wanted to move to Korea long term to be with his mother but it was too difficult to get a visa. I asked if he was threatened after he moved and he said:

    “No. It’s a fair way in distance from where I’d been living and been threatened, and they wouldn’t know where I was so I had no further contact with those people, and as soon as I got my visa and air ticket I left the country.”[80]

    (Underlining added)

    [80] Transcript, page 27, lines 17 to 20.

31. When asked if there was any reason he could not have stayed in that place where he was not being threatened, the Applicant changed his evidence and said:

    “If I had to stay in Thailand at that time it’s likely they would be able to find me.”[81]

    (Underlining added)

    [81] Transcript, page 27, lines 25 to 31.

32. When asked if he told his cousin the reason he was there, the Applicant said:

    ‘No. I didn’t tell her the detail (sic) reasons. I said that I’ve got a visa to go to Australia and that there had been some incident back home. I didn’t give her all the details.’[82]

    [82] Transcript, page 27, lines 35 to 40.

33. A little later he said:

    “Yes. I told a fellow student. I didn’t tell any of my relatives. I didn’t want to bring more problems on them, so just people that I knew very well.”[83]

    [83] Transcript, page 28, lines 17 to 20.

34. When it was put it to him that he had not warned his cousin, despite his claim that the people threatening him told him to get money from relatives and that would track him down, his evidence shifted again: he said he did tell her, and added that she told him that if he paid they might keep asking for money so he should not pay. When the inconsistency in his evidence was put to him, he rather unconvincingly said:

    “Previously when I answered I said I did share the matter with people that I was close to, close friends, and that did include my cousin and my mother..”

    and

    “I didn’t go into all the details when I told my cousin.  I just told her that I had problems back at my hometown and I’m being threatened, they’re demanding money, but I didn’t go into all the details.[84]

    [84] Transcript, pages 29 to 30.

35. While the Applicant claimed that he had to leave Thailand because his life was in danger, he had been in Thailand for three months between first being threatened and travelling to Australia and he was not harmed in that time. The evidence he gave about what he told his cousin was unsatisfactory and undermines his narrative.

36. The PV application that was submitted in November 2018 centred on a claim that the Applicant left Thailand because the government rounded up people, including his friends, and kidnapped them. He said he feared that if he returned, he would be homeless or disappear, he had been sent threats saying he would also disappear if he did not pay a certain amount of money, and he could not seek help from the authorities as he would have to go through the people he was trying to run away from. There was no mention of him having received threats from drug dealers after reporting a crime.[85]

    [85] Exhibit R2, pages 57 to 59.

37. In the instant hearing, the Applicant said he gave information to a migration agent who completed the application and submitted it. He said he read over the parts of the application that related to why he could not return to Thailand. He confirmed that he does not fear the Thai authorities, but he said as the police will not protect him he sees the government as part of the problem.[86]

    [86] Transcript, page 138, lines 42 to 46.

38. The Applicant’s evidence that his mother had lent him around $10,000 to come to Australia was based on his recollection that one Australian dollar was worth around 27 Thai Baht at that time.[87] That means he spent around 270,000 Baht (some of which his mother had borrowed) to escape the people who he claims were extorting him rather than paying the 40,000 Baht they were demanding. When asked why he did not pay the 40,000 Baht, he indicated there was no guarantee that he would not be harassed for more money, which is pure speculation, and that “paying for a visa and paying for everything like that, I gain safety, a better life…”.[88]

    [87] Transcript, page 107, lines 25 to 30.

    [88] Transcript, page 132, lines 29 to 35.

39. The Applicant claimed that shortly after he was imprisoned in October 2020, a friend in Thailand told him that people in a blue van were asking about him. He is not aware of any further activity involving the people who he claims were threatening him. 

40. A Corrective Services case report in December 2021 recorded that the Applicant had discussed his family being under serious threat from a criminal element March 2022, in Thailand, and it seemed drug related. A case note dated in March 2022 recorded that he witnessed an offence in his country and he was being threatened with murder because he “dobbed the crime in”.[89]

    [89] Exhibit R2, page 15.

41. In the instant hearing the Applicant claimed that after he got out of gaol, his friend in Thailand told him the Thai police had been asking after him, wanting to know where he was, and they had shown around a photo of him. He had then contacted the Thai police and they said they wanted to confirm his whereabouts. He asked why, and whether there was a charge against him, and they said “No, your history is clean”.[90] There is no evidence that any of the Applicant’s offending or other transgressions in Australia have come to the attention of the Thai authorities or country information indicating that if it did, the Applicant would be at risk of harm. I note that the Applicant’s claims about this friend in Thailand is at odds with his claim that he has no-one in Thailand.

    [90] Transcript, page 134, lines 34 to 36.

42. A record of a detention client interview in May 2022 noted that the Applicant said he had issues with the drug mafia in Thailand and if they saw him they would kill him.[91] A psychologist report dated in July 2022 stated that the Applicant witnessed “gangsters exchanging drugs (possibly crystal methamphetamines)”, the offenders were arrested, the Applicant became a target of revenge for the remaining the gang members, and he knew that fleeing his hometown was the only option as his life was at risk. A counsellor’s report dated in September 2022 stated that the Applicant “is a police informant in Thailand for a drug case”[92] and that if he returns to Thailand he may be killed, as the leader of the drug cartel went to jail. A report around a week later said the Applicant “gave evidence against a crime syndicate”. A case note made by a mental health nurse in November 2022, quoted the Applicant as saying “I can not (sic) go back to Thailand, as I have issues with drug lord there.”[93] All these details are at odds with the Applicant’s evidence in the hearing that he did not know what was in the package, what action the police took, who the apparent drug dealers were, or who threatened him.

    [91] Exhibit R2, page 252.

    [92] Exhibit R2, page 185.

    [93] Exhibit R2, page 182.

1. The English translation of Thai police report includes:

   “[Applicant’s father] reported that he is the father of [Applicant]…unknown number of people whose names are unknown surrounded them and kidnapped them[94] and he was scared for life so he escaped to live overseas (Australia) because someone had threatened that if [the Applicant] did not pay money, he would be kidnapped and disappear, and if he continued to live in Thailand, he would be kidnapped or assaulted or have nowhere to live.”

   [94] I note that the interpreter who assisted in the hearing indicated that in Thai “they” can refer to singular, which seems to be the case here.

2. The Applicant said he told his father about the attack on him, and after they tried unsuccessfully to get a copy of the report he made to the police, his father made a report.[95] It appears that the April 2023 report resulted from his father telling the police what the Applicant had told him. There is no reference in this report to a report having been made at the time of the alleged incident. Accordingly, it does not corroborate the Applicant’s claims.

   [95] Transcript, pages 25 to 26.

3. The Applicant claimed that his father was shot dead and he suggested that it indicates that the same could happened to him in Thailand. However, I do not accept that as the Applicant does not know why his father was shot, if indeed he was shot dead.   

4. I find the Applicant’s claims to fear harm and the reasons given to be flimsy, speculative and riddled with inconsistencies. I am satisfied that his story about drug dealers threatening and following him is a fabrication. I do not accept that he fears harm in Thailand.  

   OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION

5. If I do not exercise the discretion to refuse to grant the visa under s 501(1) of the Act, the Respondent must decide the application without any power to refuse it under s 501(1) of the Act. If the visa is granted, the Applicant may await the finalisation of all proceedings concerning his PV application in the wider community. If I exercise the discretion in s 501(1) of the Act to refuse the application, the Applicant will remain in immigration detention for that period. While a counsellor’s note states that he said he would return to Thailand rather than stay in detention, he said in the hearing that this is not the case.[96] 

   [96] Transcript, page 60, lines 30 to 48.

6. I touched on the legal consequences of the decision in paragraph 80. Under s 501E of the Act, refusal to grant the visa under s 501(1) of the Act would preclude the Applicant, while he is in the migration zone, from applying for another visa except for a Bridging R (Class WR) or a Protection visa. He could only apply for that Bridging visa if the Minister invites him to do so.[97] However, s 48A of the Act would preclude him from making another Protection visa application unless the Minister determines, in the public interests, that this prohibition does not apply.[98] The Applicant has not expressed any intention or desire to apply for another type of visa, only an intention to stay and fight for a visa. Nor is there any evidence that, if he were not precluded from Applying for another type of visa, he would have real prospects of getting one. Apart from the impact of s 501E, it is the Federal Court’s decision, not this decision, that will determine the Applicant’s legal situation and the options available to him.

   [97] Section 501E of the Act; Regs 2.12AA and 2.20A of the Regulations.

   [98] Sections 48B of the Act.

7. Refusal to grant the visa will also mean the Applicant remains in immigration detention until the Federal Court makes a decision and any consequential proceedings and applications are finalised. It is not known how long that period would be, although I do not accept the claim made on the Applicant’s behalf that he would have to wait years for a remitted MRD hearing. The Presidents Direction - Prioritising Applications in the Migration and Refugee Division provides that the highest priority is given to applications involving persons in immigration detention (and certain other cases) and the next highest priority is given to applications remitted or returned from a court for the MRD to reconsider (and another class of cases). Nor was any evidence put forward that an application for Ministerial intervention would take years, so I do not accept that claim either.

8. The Applicant complained that detention is having a negative impact on him. He said he is suffering from stress and depression. 

9. The STARTTS psychological assessment report dated in June 2022, recorded that the Applicant suffered somatic symptoms including restlessness and migraines that he attributed to stress. The psychologist noted clinically significant depression but not clinically significant anxiety. The Applicant had reported extremely bothersome symptoms such as recurrent thoughts or feelings that reminded him of traumatic or hurtful events.[99]

   [99]  Exhibit G1, G-documents, pages 71 to 82.

10. Notes of an IHMS Mental Health Consultation on 31 August 2022 recorded that the Applicant’s mental health had worsened since his case manager suggested that it would be best for him to return to Thailand.[100]

    [100] Exhibit R2, page 186.

11. Notes made in June 2023 by a STARTTS counsellor recorded that his situation triggered his traumatic experiences and increased his flashback episodes, among other things. The Applicant reported that his symptoms of anxiety and depression were exacerbated due to his detention.[101] This seems questionable given the lack of credible evidence of trauma in the Applicant’s background or current situation. In the instant hearing, the Applicant identified the flashbacks referred to as:

    ·being physically attacked in Thailand and having a gun pointed at him; and

    ·being accosted, handcuffed and put in prison in Australia.

    [101] Exhibit G1, G-documents, pages 69 to 71.

12. I do not accept the former happened. With respect to the latter, feeling upset, unhappy or chagrined about something is not the same as experiencing trauma.     

13. Notes made in August 2023 by a STARTTS counsellor recorded that the Applicant had complained of physical health issues including rectal bleeding and stomach acidity, and sleep disturbance.[102] In the hearing, he said it all came from stress and added that:

    “I come from a background of people who very low social economic class, and so I had determined I was going to try to make something of myself and help my family.  And then everything fell apart so I haven’t achieved what I was aiming for…”

    [102] Exhibit R2, pages 231 to 233.

14. The Applicant’s medical issues are being treated in immigration detention with medication, and his health seems to be improving. His hope that he will get a visa improves his mental wellbeing. He considers the treatment for his physical conditions to be adequate and “maybe not any worse or better than outside”, but he indicated that detention is not good for his mental health as “You’re just stuck here, you’ve got no certainty, no hope about the future, can’t go anywhere, can’t do anything”.[103] I accept that this is how the Applicant feels.   

    [103] Transcript, page 58, lines 5 to 10.

15. I acknowledge that the Applicant is unhappy to be in immigration detention and this is manifesting in symptoms of depression and stress along with some stress-related physical ailments. He has access to medical treatment and counselling.

16. I do not accept that the Applicant genuinely fears that he would be harmed in Thailand. Nor has he pointed to any other reason/s he does not want to return to Thailand except lower socio-economic conditions and less opportunity to do well. I am satisfied that his decision to remain in immigration detention if the visa is not granted is a pragmatic one made in pursuit of his goal of obtaining a substantive visa so he can stay in Australia on a long-term basis.

17. If the Applicant is entitled to any weight under this Other Consideration against exercising the discretion to refuse to grant the visa, it is only marginal.

    CONCLUSION

18. The Applicant’s current predicament is the direct result of flouting immigration laws and knowingly participating in a criminal enterprise. His implausible protection claims are a continuation of his attempts to manipulate the migration system. Primary Considerations 1 and 5 each weigh moderately in favour of refusing the visa. Primary Consideration 3 and Other Consideration (a) attract low and marginal weight, respectively, against refusing the visa. 

19. Even if one were to disregard the risk of further offending, Primary Consideration 1 would weigh between low and moderate. It combined with Primary Consideration 5 would outweigh the sum of Primary Consideration 3 and Other Consideration (a).

20. Consequently, I exercise the discretion under s 501(1) of the Act to refuse the visa application. The decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 22 January 2024

Dates of hearing:	9 and 10 January 2024
Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms S Roeger
Australian Government Solicitor

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	G-Documents (G1 to G5) Total Pages 125	T	Various	8 November 2023
A1	Applicant's Statement of Facts, Issues and Contentions Total Pages 12	A	6 December 2023	6 December 2023
A2	Applicant’s Tender Bundle (AM1 to AM7) Total Pages 35	A	Various	6 December 2023
A3	Report - Soem Ngam Police Station Total Pages 2	A	27 April 2023	2 January 2024
A4	Death Certificate Total Pages 2	A	25 October 2023	2 January 2024
R1	Respondent’s Statement of Facts, Issues and Contentions Total Pages 15	R	22 December 2023	22 December 2023
R2	Respondent’s Tender Bundle (TB1 to TB23) Total Pages 272	R	Various	22 December 2023
R3	DFAT Country Information Report – Thailand Total Pages 40	R	18 December 2023	8 January 2024