CFHQ and Minister for Home Affairs (Migration)

[2018] AATA 3858

CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 (12 October 2018)

Division:GENERAL DIVISION

File Number:           2018/4201

Re:CFHQ

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J Redfern
Senior Member K Raif

Date:12 October 2018

Place:Sydney

The Tribunal sets aside the decision under review and substitutes it with a decision that the discretion to refuse the application for a Safe Haven Enterprise Visa (SHEV) (Class XE) under s 501 not be exercised.

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

Deputy President J Redfern

CATCHWORDS

MIGRATION – application for Safe Haven Enterprise Visa (SHEV) (Class XE) – visa refusal – applicant has been convicted of offences that were committed while in immigration detention – failure to pass character test in s 501(6) of the Migration Act 1958 – whether the discretion to refuse to grant the visa should be exercised – consideration of primary considerations – expectations of the Australian community – consideration of other considerations – non-refoulement obligations – discretion to refuse should not be exercised – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501(1), 501(6)(aa), 197A, 195A, 46A

Migration Regulations 1994 (Cth), Schedule 1 – Item 1401(3)(v)

CASES

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

SECONDARY MATERIALS

Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

Deputy President J Redfern
Senior Member K Raif

12 October 2018

BACKGROUND

1. This is an application for review of the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection to refuse to grant a Safe Haven Enterprise Visa (SHEV) (Class XE) visa to the applicant.

2. The applicant is a national of Iran, born in December 1988. He first arrived at Christmas Island on 13 August 2013 as an unauthorised maritime arrival. On 29 September 2015 the Minister lifted the bar enabling the applicant to make an application for a visa. The applicant applied for the SHEV on 29 February 2016. On 25 July 2016 a delegate of the Minister assessed the applicant’s claims and concluded that the applicant is a person in respect of whom Australia has protection obligations because the delegate was satisfied the applicant was a refugee from Iran.

3. In December 2014 the applicant was convicted of two counts of common assault in circumstances of aggravation or racial aggravation. He was sentenced to an adult conditional release order for nine months and recognisance of $400 for each offence.

4. On 6 February 2018 the applicant was issued with the Notice of Intention to Consider Refusal (NOICR) under s 501 of the Migration Act 1958 (the Act). The applicant provided a written response to the NOICR and on 20 July 2018 a decision was made to refuse to grant the visa to the applicant. The applicant seeks review of the delegate’s decision.

5. The issue before the Tribunal is whether the applicant passes the character test as required by s 501 of the Act and, if he does not, whether the Tribunal should exercise its discretion to affirm the decision to refuse to grant the visa.

6. Section 501K of the Act provides that when a review relates to a person who seeks or has a protection visa, the Tribunal will not publish any information that identifies that person or any relative or other dependents. In order to comply with s 501K, the applicant in these proceedings will be referred to by the pseudonym. Publication or other disclosure of information tending to reveal the identity of the applicant, his relatives or dependents have been omitted from this decision and replaced with generic information to ensure confidentiality.

7. In addition, the Tribunal notes that the hearing of this matter was conducted in private in accordance with the requirements in s501K.

8. Prior to the hearing of the review the applicant was admitted to a mental health facility in Brisbane where he received treatment for long-standing and ongoing mental health issues. He was released from the facility just before the hearing. At the Tribunal’s request the Tribunal was provided with a medical opinion from a psychiatrist from the Brisbane Immigration and Transit Accommodation centre about the applicant’s capacity to give evidence at the hearing. The opinion was to the effect that the applicant had capacity. Accordingly, the scheduled hearing proceeded and the applicant appeared before the Tribunal to give evidence. He was legally represented. The applicant’s mental health issues are referred to in greater detail in this decision and the nature and extent of those mental health issues are not in dispute. Except for a brief period when the applicant was in hospital and then in community detention in Brisbane, the applicant has been in immigration detention since his arrival in Australia.

9. The issues for determination by the Tribunal are whether the ground to refuse the applicant’s visa is established and, if so, how the discretion should be exercised.

10. There is no dispute that the ground to refuse the applicant’s visa is enlivened because he has been convicted of an offence that was committed while he was in immigration detention and therefore does not pass the character test. Nor is there dispute that, based on the available evidence, the applicant does not pose a risk to the Australian community.

11. Notwithstanding these concessions by the parties, it is a role of the Tribunal to independently form its own view about these matters based on the available evidence. For the reasons later outlined, the Tribunal accepts that the concessions made by both parties were properly and appropriately made. In summary, we have decided that the discretion to consider refusal of the applicant’s visa is enlivened but on balance the discretion weighs against refusal. Our reasons follow.

    RELEVANT LAW

12. Pursuant to s 501(1) of the Act, the Tribunal acting as the decision maker may affirm a decision to refuse the grant of a visa if satisfied that the applicant does not pass the character test.

13. The character test is set out at s 501(6) of the Act, and relevantly prescribes at s 501(6)(aa) that a person will not pass the character test if:

    (aa)    the person has been convicted of an offence that was committed:

    (i)    while the person was in immigration detention; or

    (ii)   during an escape by the person from immigration detention; or

    (iii)  after the person escaped from immigration detention but before the person was taken into immigration detention again

14. Should the applicant not satisfy the character test, the discretion to refuse the visa under s 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Direction No 65 – Visa Refusal and Cancellation under s 501  and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65). Direction 65 is binding on decision-makers, including this Tribunal, performing functions or exercising powers under s 501 of the Act.

15. The General Guidance at cl 6.2(1) of Direction 65 states that:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.

16. Direction 65 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. These principles include(see cl 6.3 of Direction 65):

    ...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... and will not cause or threaten harm to individuals in the Australian community.[1]

    [1] Clause 6.3(1) of Direction 65.

17. The primary considerations which are set out in cl 11(1) of Part B of Direction 65 are:

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

    b)The best interests of minor children in Australia; and

    c)Expectations of the Australian community.

18. The other considerations which are set out of cl 12(1) in Direction 65 are:

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims;

    d)Impact on Australian business interests.

19. Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: cll 8(4) and (5) of Direction 65. However, as observed by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

    …….Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

20. As such, the other considerations referred to in Direction 65 ‘may be afforded equal or greater weight than primary considerations in an appropriate case’ (Colvin J at [26]).

    THE EVIDENCE

21. The Tribunal was provided with documents under section 501G of the Act (referred to as the ‘501G documents’), which relevantly comprise the notice of refusal, submissions for the decision, the statement of reasons for refusal of the applicant’s visa and the evidence or other material considered in the case. This included a certificate of the criminal record of the applicant, a transcript of the proceedings before the Magistrates Court of Western Australia, the application for the SHEV visa, statements and submissions from the applicant in support of his application for protection, the NOICR, the applicant’s submissions and evidence in response to the NOICR and extracts from a client incident report relating to the applicant for the period August 2013 to March 2017.

22. The Tribunal was also provided with clinical records for the applicant from International Health and Medical Services (IHMS) for the period October 2013 to August 2018. IHMS provides medical services to detainees in immigration detention. At a directions hearing conducted by the Tribunal prior to the hearing, the Tribunal requested evidence about the applicant’s mental health, including his capacity to participate in a hearing, his diagnosis and prognosis and the nature and duration of the applicant’s treatment. While the clinical records were provided by the Minister, the medical records relating to the applicant’s treatment, diagnosis and prognosis were not provided. Both parties advised they had been unable to obtain these records from the mental health facility that had been providing treatment to the applicant prior to the hearing.

23. Given there was evidence in the 501G documents and the applicant’s clinical records that his mental health issues may have a connection to various incidents of self-harm and the applicant’s previous criminal offending, the Tribunal raised an issue with both parties at the outset of the hearing about whether details of the applicant’s, treatment, diagnosis and prognosis may be relevant to the issue of whether the applicant posed a risk to the Australian community. The material also raised an issue about whether the continued detention of the applicant would exacerbate his mental health issues and whether the applicant’s criminal offending or behavioural issues while in detention were caused or at least exacerbated by his mental health issues. In particular, the Tribunal was concerned about whether the hearing would need to be adjourned to obtain further evidence about these matters from the mental health facility.

24. In opening submissions, the respondent advised that the Minister would not be submitting that the applicant posed a risk to the Australian community and therefore conceded that this primary consideration did not weigh in favour of refusal of the applicant’s visa. While evidence about the applicant’s mental health issues are relevant to the review and it would have been desirable to obtain expert opinion on these matters, given the Minister’s concession, the documentary evidence outlining the applicant’s mental health issues and the difficulties in adjourning the matter for an extended period to obtain this evidence[2], the Tribunal proceeded on the basis of the material provided. Relevantly, the Tribunal was not satisfied there was prejudice to the parties because of the concession about risk and the nature of the documentary evidence before the Tribunal about the applicant’s mental health, which is not in dispute.

    [2] Section 500 (6L)(c) of the Act provides that if the Tribunal has not made a decision within 84 days after the day on which the person was notified of the decision under review the Tribunal is taken to have affirmed the decision. The applicant was notified of the decision on 23 July 2018 as such the Tribunal must make a decision on this matter on before 15 October 2018.

25. It is also relevant to note that the Tribunal was provided with a letter from Dr Jillian Spencer, psychiatrist from IHMS, dated 25 September 2018. According to Dr Spencer she had reviewed the applicant in person on 21 September 2018 at the Brisbane Immigration and Transit Accommodation Centre. Dr Spencer opined as follows:

    [The applicant] appears to have the capacity to accurately recall past events. He is orientated and able to communicate well in English. He is not suffering any psychotic systems and his mood symptoms have improved. He is settled and appropriate in his behaviour. He is not experiencing any significant medication side-effects.

    In my opinion, [the applicant] has the capacity to give evidence at the AAT hearing scheduled for 2 – 3 October 2018.

    (The applicant’s name has been removed from this extract in accordance with s 501K of the Act).

26. Based on this short report, the advice from the applicant’s legal representative who had been communicating with him and taking instructions and the Tribunal’s observations of the applicant at the hearing while giving evidence, the Tribunal formed the view that the applicant was able to give evidence and appeared to understand the nature of the proceedings. The applicant gave evidence during the hearing, the substance of which is set out in more detail later in these reasons.

27. In addition to this material, the applicant provided a statement dated 12 September 2018 which was written in Persian and translated into English, documents obtained from the Department of Home Affairs (the Department) as a result of an application under the Freedom of Information Act 1982 (Cth) (FOI Act) which were not included in the 501G documents and were apparently not considered by the delegate, a prosecution notice for a further offence committed while the applicant was in immigration detention on 12 June 2016 and a chronology prepared by the applicant’s representatives extracting what is said to be the relevant records relating to the applicant’s mental health issues. This latter document was not tendered as evidence but rather as an aid for the Tribunal in assessing and reviewing the clinical records provided. The applicant also provided several volumes of documents relating to reports and country information to substantiate his claim that he had a well-founded fear of persecution in Iran. Given the finding by a delegate of the Minister that the applicant has a well-founded fear and that Australia owes him protection as a refugee and the concession by the Minister that this issue is not in dispute, the Tribunal did not consider this material in detail.

28. The respondent provided a copy of the order made by the Magistrates Court on 25 July 2017 in respect of the offence on 12 June 2016 and a security risk assessment dated 23 April 2018 prepared by SERCO, a contractor providing services to the Department in respect of immigration detention centres, which included an extract of the incident history for the applicant while he was in immigration detention in the period October 2013 to 23 April 2018. The security risk assessment was not tendered by the respondent in its entirety but the extract of the applicant’s incident history while in detention was tendered and accepted by the applicant as a summary of the more detailed incident reports contained in the G documents. At the request of the Tribunal, the respondent also provided case details in relation to an application for ministerial intervention. The content of the file note is outlined in more detail below.

29. Much of the evidence relied upon by the parties is not in dispute. The following is an outline of the key aspects of the evidence.

30. The applicant arrived on Christmas Island as an unauthorised maritime arrival in August 2013. At the time he arrived in Australia the applicant was precluded from making an application for a SHEV by reason of s 46A of the Act. Under s 46A, the Minister has discretion to lift the bar to allow an unauthorised maritime arrival to apply for a SHEV, which the Minister did in relation to the applicant’s case on 29 September 2015. The applicant made an application for a SHEV on 17 February 2016.

31. At the time of the application, the applicant had been in immigration detention on Christmas Island for over two years. He had been charged, and was subsequently convicted, with two counts of common assault of detention centre staff on 19 and 20 June 2014. The applicant pleaded guilty to the charges and was sentenced on 10 December 2014 by Magistrate Temby of the Magistrates Court of Western Australia to adult conditional release orders for nine months a recognisance of $400 in relation to each offence. These convictions were disclosed by the applicant in his application for a SHEV.

32. The circumstances of these offences are set out in the transcript of proceedings in the Magistrates Court on 10 December 2014. It describes that on the first occasion, on 19 June 2014, the applicant, who was using aluminium walking sticks or crutches to assist him with walking, lifted his walking stick and swung it in the direction of the SERCO service officer, striking him on the left side of the head above his ear. On the second occasion, on 20 June 2014, a SERCO client service manager approached the applicant to reclaim the walking crutches to return to the medical centre. Later in the day the applicant used threatening language towards the officer. The applicant swung a metal pole and struck the staff member on the left forearm. Neither officer sustained serious injury but both were shocked and in the case of the second officer, he sustained bruising and swelling on his lower arm. It is recorded in the transcript through submissions made by the applicant’s lawyer that the applicant had subsequently apologised to both officers and while this was confirmed by the immigration detention centre in relation to one of the officers, it could not be confirmed in relation to the second officer because he had since left the facility.

1. In sentencing the applicant, Magistrate Temby concluded that it was appropriate to record a conviction because it was important as a matter of both specific and deterrent penalty to send a message to others who are in detention that ‘one of the consequences that flows from bad behaviour in detention is the recording of a conviction’. In explaining the effect of the adult conditional release order, his Honour described the order as ‘equating to a good behaviour bond’, noting that if the applicant did not reoffend within the nine months he would not be required to pay the fine of $800. While Magistrate Temby noted that the applicant ‘wasn’t at his best’ at the time of the offences and that ‘things had got on top of him’, this did not give the applicant the right to be aggressive with the officers who are simply doing their job, particularly in using his crutches as weapons. It is clear from the sentencing remarks that the Magistrate considered general deterrence to be an important factor in the applicant’s matter notwithstanding that the applicant ‘came before the court without blemish’ and had entered early pleas.

2. After this incident, there were further incidents reported but as the applicant’s representatives submit, and we accept having reviewed the incidents reports, a substantial majority of those reported incidents were either minor disturbances, sometimes not involving the applicant as a perpetrator, or were connected with conduct which involve the applicant self-harming. There is no dispute that the applicant was not charged in relation to any of these incidents, save for an incident that took place on 12 June 2016, and he was not required to pay the bond imposed by Magistrate Temby.

3. On 12 June 2016 the applicant was one of a number of detainees who participated in a protest in the Christmas Island detention Centre. He was charged with the offence of obstruction to a Commonwealth public official on 10 October 2016 and on 25 July 2017 was convicted of the offence but was released under s 20(1)(a) of the Crimes Act 1914 (Cth) without passing sentence upon giving security by recognisance of $500 on condition that he was to be of good behaviour for a period of six months. As already noted the applicant has not been charged with any other offences and there is no evidence that he breached the good behaviour bond or was required to forfeit the security.

4. In the applicant’s clinical records there are numerous references to the applicant’s mental health issues with the first record being on 27 December 2013, when the applicant presented to the clinic after cuts were found to his left wrist. This was assessed as ‘deliberate self-harm’ and the applicant was referred for a mental health review. There are further examples of self-harm in the seven months following this incident, including the applicant suturing his lips and inflicting lacerations to his body. It is recorded that the applicant was frustrated by his detention and disgruntled at the detention process. In a mental health assessment undertaken on 16 February 2015 it was noted that the applicant was angry with his predicament in detention but there was ‘no evidence’ of mental illness. The applicant was assessed as having ‘poor coping skills’ and a ‘low tolerance threshold’. In a further mental health assessment undertaken on 13 May 2015 it was noted that the applicant had an inability to cope and was resistive of self-help. On 18 May 2015 the applicant engaged in self-harm by cutting three wounds into his scalp and it was recorded that the assessment of self-harm was high. Relevantly, the assessment noted:

   Risk of self-harm is high. I have formed the impression that two years in detention has exhausted his coping ability.

5. There were further self-harm incidents recorded from July to late November 2015, with references to suicide ideation and one suicide attempt. After this, there is a period of relative stability until 4 May 2016, when the following assessment is recorded:

   Increased stress since the riot. Increased thought around suicide exacerbated by the increase in self-harm and suicide around the network in the last six months by refugees.

   …

   Issues appear to be around length of stay. And “no end date, no plan.” Request writer let immigration know that. “They need to do something so that people here don’t get to the point that has now happened in Nauru.–

6. It is apparent from the clinical notes that this change followed reports of the death of a detainee on Nauru.

7. Five weeks after this assessment the applicant participated in the protest that was the subject of the criminal charges laid on 10 October 2016. Following this protest there were no further references to self-harm or suicide ideation for an extended period and it was noted on 8 April 2017 that the applicant ‘did not display any acute stress response’ or any trauma symptoms. He was further assessed on 21 July 2017 to be pleasant and polite and it was noted that at that stage there were no acute mental health issues. However, by 23 October 2017 the applicant presented with a ‘low mood’ and it was noted that there was ‘evidence of detention fatigue’. On 23 January 2018 the applicant was again assessed as having ‘detention fatigue’ but declined mental health support at this time. On 13 March 2018 the applicant requested to see mental health staff and the assessment as a result of that review noted as follows:

   Appeared withdrawn and fatigued from detention environment. He has expressed remorse for the incidents he has been involved in that had negatively on his character to date. States he has not been “in trouble” for over a year and has hoped this will improve his chances of eventually being released into the community.

8. In late May and June 2018 the applicant spent time on the roof of the Christmas Island detention centre and he was assessed on 18 June 2018 as being ‘withdrawn and fatigued from detention’ and it was noted that he remained ‘an ongoing risk of self-harm reactive to situational stresses’. While the applicant denied suicidal ideation on 25 June 2018 three days later it is recorded that he jumped from a balcony which was five or six metres above the ground below. Having regard to the mental health reports and assessments made from this date until August 2018, it is clear that the applicant’s mental health deteriorated during this period. Relevantly, it was noted on 14 July 2018 that there were ‘strong themes of hopelessness and helplessness’. It was also noted that the applicant was to be transferred to Pine Rivers Hospital in Brisbane for treatment.

9. According to the report from Dr Spencer, the applicant was admitted to Pine Rivers Hospital on 16 August until 19 September 2018 for treatment of ‘major depression’. There was no further detail about the nature of the treatment or his prognosis in this report.

10. While the Tribunal was not provided with an expert’s report outlining the nature of the applicant’s mental health issues, it is clear from his clinical records that the applicant has struggled with mental illness and, in particular, self-harm and suicidal ideation, over various periods during his detention. There is no evidence about whether the applicant’s mental health issues were caused by his detention or whether there were pre-existing issues which were exacerbated by his detention. In any event, there are a number of consistent references in his clinical records to the inability of the applicant to cope with his situation and his denial of his mental health issues. The evidence from the applicant’s clinical records presents a picture of the applicant having fluctuating mental health issues, which more generally manifested in self-harm rather than harm to others but did on occasion manifest as aggression directed towards detention centre staff. The applicant was questioned about seven incidents that were referred to in the incidents reports and alleged to have taken place between May 2014 and August 2017. This evidence and our assessment of these matters are referred to in more detail below.

11. On 25 July 2016 an officer of the Department made an assessment of the SHEV claims made by the applicant and concluded that the applicant was a person in respect of whom Australia has protection obligations. This finding is recorded in an International Treaties Obligations Assessment (ITOA) undertaken by the officer who noted that the applicant was ‘indicatively found to be a refugee’ and was accepted by the delegate who refused the applicant’s visa (paragraph 31 of the decision under review).

12. The Tribunal was provided with email correspondence between Department officers in the period 23 December 2016 to 14 January 2017 relating to an active and proposed referral under s 195A of the Act in relation to the applicant. These are some of the documents provided by the applicant which were not included in the 501G documents but were obtained by the applicant through an FOI Act application. Section 195A applies to a person who is in detention and gives the Minister discretion to grant a visa to the person if the Minister ‘thinks it is in the public interest to do so’. The author of the earliest email was seeking information about whether an assessment could be undertaken to progress the applicant’s case. It is apparent that an assessment was undertaken by the Department using the Community Protection Assessment Tool (CPAT) because a copy of this assessment was provided to the Tribunal and attached to one of the emails in the chain of the email correspondence. The applicant was assessed as a ‘low risk of harm to the community’. Following this assessment a recommendation was made to refer the applicant’s case to the Minister for consideration of a bridging visa associated with the applicant’s ongoing SHEV application. The recommendation is dated 6 February 2017 and was prepared by a case officer in the Department’s complex case resolution section. The recommendation was approved by an assistant director on 9 February 2017. Relevantly, the recommendation is in the following terms:

    [The applicant] has been in held (sic) immigration detention since his arrival, more than three years and six months ago. He currently has an ongoing SHEV application and has been indicatively found to be owed protection. He has a criminal conviction for a minor crime for which he received a good behaviour bond. He has other charges outstanding for being involved in two disturbances at an immigration detention centre, with the hearing date set for April. Following the outcome of this case, he may be referred for consideration of refusal under section 501 of the Act. This process could take some time to complete, and will result in his time in detention being prolonged.

    The applicant has been involved in a large number of behavioural incidents since being detained, however, he has provided a letter to the Department stating that he understands his previous behaviour was wrong was mostly related to his frustration and the difficulties he has faced living with the detention environment.

    Additionally, IHMS have advised that although [the applicant] has not been formally diagnosed with any mental health issues, his behaviour in detention is in the context of frustration due to prolonged detention and an exhausted coping mechanism.

    As such, given the length of time he has been in held immigration detention, the circumstance that his detention may be further prolonged following the outcome of his criminal court hearing in April, his coping mechanisms are exhausted, and he is trying to change his behaviour, [the applicant] is assessed as meeting the section 195A MI guidelines for referral to the Minister for consideration of a BVE associated with his ongoing SHEV application.

    (The applicant’s name has been removed from this extract in accordance with s 501K of the Act).

13. While it is not entirely clear from the recommendation, it is likely that the criminal trial referred to in the recommendation is the obstruction charge of October 2016, which was finalised by conviction and a good behaviour bond on 25 July 2017. There is no evidence before the Tribunal of any other criminal charges or trial in April 2017.

14. One of the further documents provided to the Tribunal by the applicant as a result of the FOI Act application was an assessment by the Commonwealth Ombudsman to the Minister for Immigration and Border Protection which was made under s 486O of the Act. Section 486O provides that as soon as practicable after being given a report relating to the circumstances of a person’s detention, the Ombudsman must give the Minister an assessment of the appropriateness of the arrangements for the person’s detention. The assessment may include any recommendations the Ombudsman considers appropriate, although the Minister is not bound by any recommendations made. While the report is undated it is apparent from its content that it was prepared sometime after 10 August 2017. The report notes the applicant was found to meet the guidelines for referral to the Minister under s 195A of the Act for the grant of a bridging visa on 9 February 2017. The report noted that on 10 August 2017 the Department advised that the referral of the applicant’s case under s 195A and the processing of his SHEV application was delayed pending the conclusion of his criminal matters. It was also noted that following conclusion of the criminal matters the Department would consider the applicant’s SHEV application and his case would be referred under s 195A if appropriate. It was noted that the applicant had been convicted of obstructing a Commonwealth official and that he had received a good behaviour bond and was fined. Relevantly, the Ombudsman made the following recommendation:

    The ombudsman’s previous assessment (1001970–O) recommended that consideration be given to placing the applicant in community detention in light of the significant history of self-harm and suicidal ideation and the reported impact prolonged restricted detention was having on his mental and physical health.

    On 15 February 2017 the Minister advised that the applicant was being assessed against the guidelines for referral for the grant of a bridging visa under s 195A.

    The Ombudsman notes with concern the government’s duty of care to detainees in the serious risk to physical and mental health prolonged immigration detention may pose.

    In light of the significant length of time the applicant has remained in detention and the absence of any recent security concerns, the Ombudsman recommends that the Department expedite the consideration of the applicant’s case under s 195A.

    (The applicant’s name has been removed from this extract in accordance with s 501K of the Act).

15. Given there was no evidence about the status of this application following the recommendation of the Ombudsman, the Tribunal requested further information about this application from the respondent. The respondent provided an internal record which noted that while it had been recommended that the applicant’s case be referred to the Minister under s 195A, the Department did not wish to progress the submission to the Minister for his consideration ‘until the court matters had been heard and finalised’. It was further noted that once the criminal court cases had been finalised, the case manager can re-refer the case for further consideration under s 195A of the Act if appropriate.

16. On the evidence available to the Tribunal, and there was no submission to the contrary, it appears that all criminal charges against the applicant were finalised by the orders made by the Magistrates Court on 10 December 2014 and on 25 July 2017. There is no further evidence available to the Tribunal regarding the proposed referral under s 195A.

17. In his statement in support of the application for review, the applicant stated that he had never been charged with any offences of assault or the like outside of Australia and he had come to Australia to seek protection because of his Christian beliefs and the issues that he was having with Iranian authorities. According to the applicant, his mental health has ‘slowly but significantly deteriorated’ since being in detention and he had seen friends leave and start their new life and had even witnessed a friend die in detention. Being detained on Christmas Island had impacted on his mental health and he had been involved in incidents which he was not proud and in respect of which he was sorry. He did not believe that he had access to the mental health support he needed. He was receiving treatment at Pine Rivers Hospital in Brisbane which he hoped would bring about a change to assist him to cope with his circumstances. The applicant stated that he was ‘very sorry’ for what had happened before today and that he hoped to have a chance to ‘live in peace and safety’ which is why he originally came to Australia.

18. He also provided character statements in support of his application, including character references from detention centre staff. The applicant provided a letter from his relatives in Australia, namely two uncles, an aunt by marriage to one of his uncles and a cousin. The letter was to the effect that the applicant’s relatives knew the applicant and could vouch for him as a ‘good person’ who had caused problems because he had been in detention for such a long time. His relatives asked that the applicant be given a chance to prove himself and to start a new life.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

19. The applicant concedes he does not pass the character test.

20. The applicant has been convicted of two instances of common assault in circumstances of aggravation or racial aggravation. The events occurred in June 2014 while the applicant was in immigration detention. The applicant pleaded guilty to these offences, expressed remorse and, as already noted, was given an adult conditional release order in relation to each offence. In addition to these matters, the applicant was convicted with the offence of obstructing a Commonwealth officer. This offence was also committed while the applicant was in immigration detention.

21. Accordingly, the concession made by the applicant is appropriate and the Tribunal finds that the applicant has been convicted of offences that were committed while he was in immigration detention. In accordance with s 501(6)(aa), the applicant does not pass the character test.

    EXERCISE OF DISCRETION

22. The Tribunal’s considerations are set out below with regard to the Direction 65.

    Primary considerations

    Protection of the Australian community

23. The Minister concedes that the applicant does not pose a risk to the Australian community. Having regard to the applicant’s circumstances and evidence, and for the reasons set out below, the Tribunal considers that concession to be appropriate and finds that the applicant does not pose a risk to the Australian community.

24. The applicant has been convicted of two instances of common assault and one offence of obstructing a Commonwealth official. While there is little detail about the circumstances giving rise to the most recent conviction (for instance the Tribunal was not provided with any sentencing remarks, fact sheets or agreed facts), the circumstances of the offending are as previously outlined in these reasons.

25. Sub-clause 11.1 of Direction 65 provides as follows:

    11.1 Protection of the Australian community

    (1)       When considering protection of the Australian community, decision-makers                    should have regard to the principle that the Government is committed to   protecting the Australian community from harm as a result of criminal   activity or other serious conduct by non-citizens. There is a low tolerance   for visa applicants who have previously engaged in criminal or other   serious conduct. Decision-makers should also give consideration to:

    a)        The nature and seriousness of the non-citizen’s conduct to date;   and

    b)        The risk to the Australian community should the non-citizen commit   further offences or engage in other serious conduct.

1. Sub-clause 11.1.1(1) provides guidelines about the matters that should be considered in having regard to the ‘nature and seriousness’ of the conduct. Sub-clause 11.1.1(1)(a) states that violent offences are viewed seriously. The Direction also states that crimes committed against officials due to the position they hold, or in the performance of their duties, are serious (subcl 11.1.1(1)(b)). Crimes committed while in immigration detention constitute an offence under s 197A of the Act.

2. The applicant acknowledges that the conduct he engaged in has been serious. However, it is submitted that his offending behaviour must be viewed in light of his particular circumstances at the time the conduct occurred. The Tribunal has considered the applicant’s circumstances and based on the preponderance of evidence contained in the applicant’s clinical records and the incidents reports, the Tribunal accepts that to be the case.

3. At the time these offences were committed, the applicant had been in detention for a period of approximately one year. The applicant submits that his mental state has been affected by the length and the circumstances of his detention. There is ample medical evidence before the Tribunal indicating that the applicant’s mental state was poor. Records of IHMS indicate that the applicant has a history of self-harm and suicidal ideation. While there is evidence in the clinical records that the applicant did not always accept he had mental health issues and was sometimes resistive, there is also evidence that he engaged with mental health professionals while in detention on numerous occasions.

4. The applicant relies on the s 195A assessment conducted in February 2017. As already noted this assessment refers to the applicant’s behaviour in detention as relating to ‘minor’ incidents and suggests that the incidents were caused by the applicant’s frustration with the length of detention. The views in that assessment are consistent with the undated assessment by the Commonwealth Ombudsman, which also suggests that prolonged immigration detention may pose a serious risk to physical and mental health of a detainee.

5. Sub-clauses 11.1.1(e) to (g) of Direction 65 provide that matters such as the sentence imposed by the courts, the frequency of the offending, any trend of increasing seriousness and the cumulative effect of repeat offending must be taken into account by decision-makers when assessing the protection of the Australian community.

6. In this case, the applicant was effectively sentenced to good behaviour bonds in respect of each of his convictions. These sentences reflect the fact that his convictions and the nature of his offending was at the lower end of criminality and seriousness. As reflected in the sentencing remarks of Magistrate Temby, the recording of the convictions and the sentences imposed on 10 December 2014 were intended as general deterrence. Relevantly, there is no evidence of increased frequency in offending or an increasing trend of seriousness in the applicant’s offending.

7. Sub-clause 11.1.1(h) of Direction 65 provides that in considering the nature and seriousness of criminal offending or other serious conduct, the decision-maker should have regard to whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending, Sub-clause 11.1.1(i) provides that where a non-citizen has committed an offence or conduct in another country, the decision-maker should have regard to whether the offence or conduct is classified as an offence in Australia. There is no evidence that the applicant has provided false or misleading information to the Department including non-disclosure of prior criminal offending. Nor is there evidence that any offences were committed in another country. The applicant’s earlier convictions were disclosed in his SHEV application and were known to the Department at the time the bar was lifted under s 46A.

8. Sub-clause 11.1.2 of Direction 65 provides guidance in relation to the risk to the Australian community should an applicant commit further offences or engage in other serious conduct. The Tribunal has considered the likelihood of the applicant engaging in further criminal or other serious conduct. The applicant submits, essentially, that his conduct is the product of his lengthy detention and the effect it has had on his mental health. The applicant expressed remorse for his conduct and pleaded guilty to the two assault charges at the earliest opportunity. There is little evidence about the third conviction. The applicant submits that the position may have been different if he had access to better treatment while detained onshore. We are not in the position to access the adequacy of his mental health treatment on Christmas Island but note that the applicant has recently undergone treatment for a month at a mental health facility in Brisbane. His evidence is to the effect that this treatment has assisted but we have not independent expert evidence to support this, other than the brief report form Dr Spencer, which seems to suggest the applicant’s mental health has stabilised.

9. The applicant was recently placed in community detention and there is no suggestion that he engaged in any criminal or anti-social conduct during his stay in community detention. The Tribunal accepts that the applicant’s conduct in detention may have been affected by his poor mental state, for which he has recently received treatment. It is also relevant to note that the applicant was assessed by the Department in January 2017 as a ‘low risk’ of harm to the Australian community.

10. Based on the available evidence and having regard to the concession made by the respondent, the Tribunal has formed the view that the risk of the applicant committing further offences is low. Accordingly, the Tribunal finds that based on the available evidence the applicant does not pose a risk to the Australian community and that the protection of the community does not favour the refusal of the visa.

    Best interests of minor children

11. There are no minor children who would be affected by the decision to refuse to grant a visa to the applicant and, as such, this consideration neither militates in favour or against the discretion to refuse the applicant’s visa

    Expectations of the Australian community

12. Clause 11.3 of Direction 65 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 Mortimer J said that the description of ‘community expectation’ in Direction 65 operates as a prescription statement. Mortimer J states at [76]:

    In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

13. Although that case involved a non-revocation of a cancellation, rather than a refusal of the visa, the reasoning would equally apply in relation to a visa refusal.

14. In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:

    …the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.

15. The applicant submits that it is necessary to consider the circumstances that had led to the offending and, in particular, his mental health must be taken into consideration when considering community expectations. The applicant further submits that it is not the expectation of the community that an applicant who has spent considerable time in detention would not be granted the visa where the outcome would be that the applicant would either be required to return to Iran or remain in detention indefinitely.

16. As noted above, the Tribunal accepts that the applicant has had mental health issues and has been receiving treatment, including most recently, one month of treatment for major depression in a hospital. Although a causal link between the applicant’s condition and offending has not been established, the Tribunal accepts, based on evidence contained in the applicant’s clinical records as previously outlined, that the applicant’s lengthy detention since his arrival in Australia has negatively impacted his mental health. The Tribunal accepts that the applicant’s mental state may have affected his conduct. There is evidence that the applicant’s mental state has fluctuated over the years he has been in detention and that there is a correlation between the deterioration in his mental condition and many of the instances of behavioural issues. This is not only supported by examination of the clinical records and the incident reports but also by the conclusion reached by the Department at the time of the s 195A assessment of February 2017 and assessments and recommendations made by the Commonwealth Ombudsman.

17. The Minister submits that there were numerous other instances of the applicant’s anti-social behaviour by reference to incidents while the applicant was in detention and claims this evidences the applicant’s general disregard for the law. The applicant submits that the evidence is hearsay, untested and but in any event these incidents are minor and do not reflect a person who is involved in violence but a person who is frustrated with his lengthy detention. 

18. The applicant was cross-examined about these incidents, which are said to have occurred on 17 May, 6 June and 21 December 2014, 16 July and 24 December 2015, 14 June 2016 and 1 August 2017. According to the incident report each of these incidents was classified as ‘minor’. There is no evidence that any charges were laid arising from these incidents. When the respondent was questioned about a number of these incidents he declined to answer questions on the basis that while he had not been charged, there was the potential that evidence given in the proceedings could be used again him and may have the potential to incriminate him. The applicant gave these responses after there was a brief adjournment to allow the applicant to seek advice from his lawyers given the line of questioning foreshadowed by the respondent’s representative. While the potential for incrimination may be a more remote possibility when an applicant has not been charged, the potential nonetheless exists and the Tribunal does not make any negative inferences against the applicant arising from his responses, particularly having regard to the applicant’s current circumstances and his somewhat fragile mental health.

19. The applicant’s representative submitted that these incidents need to be considered in the context of other evidence of mental instability and self-harm at or around the time of the incident. For instance, the incident on 16 July 2015 occurred on the same day that the applicant self-harmed. This incident of self-harm was recorded as a ‘major’ incident. In summary, the applicant’s representative submits, and we accept, that these incidents cannot be taken in isolation and must be assessed against the applicant’s complicated mental health issues.

20. The Tribunal accepts that the incident report sets out a number of incidents referring to the applicant, however, finds that many of these are classified as ‘minor’ and the majority of those that have been assessed as ‘major’ refer to the applicant self-harming. There are incidents when the applicant was said to be aggressive towards others but the Tribunal accepts the applicant’s evidence, and considers it significant, that many of these incidents occurred in close proximity of the applicant engaging in self-harm and at least some of the episodes may be considered as incidental to self-harming behaviour. This behaviour must be viewed in the context of the applicant’s poor mental health. The Tribunal has formed the view that the applicant’s mental health issues manifest predominantly in self-harm rather than harm to others.

21. Overall, the Tribunal accepts that the applicant has been convicted of offences and also that he engaged in anti-social behaviour during his detention. However, the Tribunal has formed the view that the applicant’s behaviour must be viewed in light of his circumstances and, in particular, the length of his detention and his poor mental health, factors that are likely to have contributed to the applicant’s conduct. While we accept that the Australian community would expect non-citizens to comply with the law and not to engage in anti-social behaviour, the Tribunal is of the view that the Australian community, properly informed about the applicant’s circumstances, would also expect those factors which may have caused, or at the least exacerbated, the applicant’s offending and anti-social behaviour to be taken into consideration. The expectations of the community may be to allow the applicant to remain in Australia given these circumstances. Accordingly, the Tribunal finds that the expectations of the Australian community either do not weigh in favour of exercising the discretion to refuse the visa, because the expectations of the community may be to allow the applicant to remain in Australia having regard to the applicant’s particular circumstances, or if they do weigh in favour, not strongly so.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

22. As the applicant entered Australia as an unauthorized maritime arrival, he is limited in the type of applications he may make in the future. Section 46A of the Act precludes the applicant from making a valid visa application, with certain exceptions. Item 1401(3)(v) of Schedule 1 to the Migration Regulations 1994 (the Regulations) prevents the applicant who is an unauthorized maritime arrival, from making an application for a Class XA protection visa. Item 1403(3)(v) of Schedule 1 to the Regulations prevents the applicant who is an unauthorized maritime arrival, from making an application for a Class XD Temporary Protection visa. The Tribunal finds that the applicant is not able to make another application for a protection visa unless he is permitted to do so by the Minister. This is not a case where the applicant’s protection claims can be addressed in another forum.

23. As part of his application for the SHEV, the applicant was assessed against Australia’s International Treaties Obligations. The Department has found that Australia owes protection to the applicant.  Both parties accept that there are protection obligations owed to the applicant. The applicant provided to the Tribunal a number of documents addressing the situation in Iran. Having regard to that information, as well as the ITOA, the Tribunal is satisfied that there is a risk that the applicant may be subjected to harm if returned to Iran. The Tribunal finds that the removal of the applicant to Iran may be in breach of non-refoulement obligations.

24. The applicant submits that if the visa is refused under s 501, he will be unable to apply for another visa. The respondent confirmed in oral submission to the Tribunal that the applicant may not be returned to Iran involuntarily because of the policies of the Iranian government. As such the applicant cannot be returned to Iran unless he chooses to do so voluntarily and there is no indication before the Tribunal that the applicant has any intention of returning to Iran voluntarily. This is because he fears harm, which has been assessed by the Department to be well-founded.

25. The Minister concedes that if the applicant cannot be removed to Iran, he may remain in detention unless granted another visa. Unless the applicant chooses to return voluntarily or unless he is granted another visa, the applicant will remain in detention. The Tribunal accepts that the Minister may exercise power under s 195A to enable the applicant to be granted a bridging visa. However, this was not done in the past, despite the recommendation being made for the referral to the Minister and despite the recommendation of the Ombudsman to expedite the process. There is no evidence that the referral was made. Furthermore, there is nothing before the Tribunal to indicate that the Minister would intervene and grant a visa to the applicant under s 195A of the Act.. There is thus a real possibility that the applicant will be detained indefinitely or for a very lengthy period. Such detention is likely to exacerbate his mental condition even further and cause significant hardship to the applicant.

26. The Tribunal finds that Australia’s non-refoulement obligations and the alternative possibility of lengthy or indefinite detention are compelling considerations for exercising discretion in favour of the applicant.

27. Another consideration for the Tribunal is the applicant’s mental health. It is not in dispute that the applicant’s mental state is poor and that he has been receiving treatment throughout the period of his stay in Australia. As already noted, the applicant’s mental state appears to have been exacerbated by detention and prolonged detention in the future may affect the applicant even further. These are significant consequences to the applicant’s visa application being refused. The Tribunal finds that this reason also supports the exercise of discretion in favour of the applicant.

28. There is a statement from the applicant’s relatives in Australia supporting his visa application and release from detention. There is little other evidence before the Tribunal about the impact of the decision to refuse to grant the visa upon family members.

29. There is no evidence before the Tribunal concerning the impact of the decision on victims.  There is nothing to suggest Australian business interests would be affected by the decision.

    CONCLUSION ON EXERCISE OF DISCRETION

30. The Tribunal has considered the totality of the applicant’s circumstances. In relation to the primary considerations, the Tribunal finds, and both parties agree, that the applicant does not pose a risk to the Australian community. There are no children affected by the decision.  With respect to the expectations of the Australian community, while the Tribunal accepts that there is a general expectation of compliance with the law, the Tribunal has formed the view that in the applicant’s particular circumstances which are outlined above, the expectations of the community may be to allow the applicant to remain in Australia. This factor does not necessarily weigh in favour of refusal having regard to the applicant’s particular circumstances.

31. In relation to the other considerations, the Tribunal finds that Australia’s non-refoulement obligations and the significant hardship and detrimental effect that prolonged detention may have on the applicant’s health, are compelling factors that support the exercise of discretion in favour of the applicant. The hardship that would be caused by the visa refusal may result in a disproportionate outcome for the applicant, having regard to the nature and circumstances of his offences. As observed in Suleiman, factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.

1. Having regard to all the relevant circumstances, the Tribunal finds that the discretion to refuse the application under s 501 should not be exercised.

   CONCLUSION

2. The Tribunal sets aside the decision under review and substitutes it with a decision that the discretion to refuse the application for a Safe Haven Enterprise Visa (SHEV) (Class XE) under s 501 not be exercised.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Redfern and Senior Member K Raif

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

Associate

Dated: 12 October 2018

Date of hearing:	3 October 2018
Counsel for the Applicant:	Ms E Bathurst
Solicitors for the Applicant:	RACS
Solicitors for the Respondent:	Australian Government Solicitor