CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 927
•17 April 2020
CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927 (17 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0635
Re:CKQV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:17 April 2020 (10:00am)
Date of Written Reasons: 21 April 2020
Place:Perth
The Reviewable Decision dated 16 January 2020 is set aside and the Tribunal makes a decision in substitution that the discretion should not be exercised to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth).
.........[sgd]...............................................................
Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – decision of delegate of Minister to cancel Applicant’s visa – jurisdiction – whether the Applicant’s handwritten letter could be regarded as making a valid application – Applicant’s application filed in time – operation of
‘two-day rule’ – character test – substantial criminal record – court in Australia has convicted the person of one or more sexually based offences involving a child – violence related offences – breach of court orders – traffic and drug offending – Direction no. 79 -protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of minor children – expectations of the Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties – impact on Australian business interests – impact on victims – extent of impediments if removed to Indonesia – reviewable decision set aside and substituted – discretion should not be exercised to cancel the Applicant’s visaLEGISLATION
Acts Interpretation Act 1901 (Cth) – s 36(2)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 29(1)
Migration Act 1958 (Cth) – ss 347(1)(a), 412(1)(a), 499, 499(1), 499(2A), 500(1)(b), 500(6B), 500(6C), 500(6J), 500(6H), 501, 501(1), 501(2), 501(6), 501(6)(a), 501(6)(c), 501(6)(e), 501(7), 501CA(4), 501G(1), 501G(2), 501G(3)
Migration Regulations 1994 (Cth) – reg 2.55, 2.55(3)(a), 2.55(5)
Tribunals Amalgamation Act 2015 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250
Di Stefano and Minister for Home Affairs [2019] AATA 677
Eggu and Minister for Immigration and Citizenship [2010] AATA 1003
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCA 500
Gage and Minister for Home Affairs [2020] AATA 326
Gallagher and Minister for Immigration and Citizenship [2011] AATA 10
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HSKJ v Minister for Immigration and Border Protection (2018) 163 ALD 261
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Mahia and Minister for Immigration and Citizenship [2011] AATA 789
Minister for Home Affairs v Omar (2019) 373 ALR 569
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Ngapera and Minister for Immigration and Citizenship [2012] AATA 24
Omar v Minister for Home Affairs [2019] FCA 279
Otineru and Minister for Immigration and Citizenship [2007] AATA 1939
Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710
Reedy and Minister for Immigration and Citizenship [2011] AATA 363
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Russell v Minister for Home Affairs [2019] FCAFC 110
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Scott and Minister for Immigration and Citizenship [2012] AATA 400
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Wilde and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 840
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79) – paras 6.1, 6.1(2), 6.1(4), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 7(1)(a), 8, 9(1), 9.1, 9.1(1), 9.1(2), 9.1.1, 9.1.1(1)(a), 9.1.1(1)(b), 9.1.1(1)(c), 9.1.1(1)(e), 9.1.1(1)(f), 9.1.1(1)(g), 9.1.1(1)(h), 9.1.1(1)(i), 9.1.1(1)(j), 9.1.1(1)(b), 9.1.1(1)(c), 9.1.1(1)(d), 9.1.1(1)(k), 9.1.2(1), 9.1.2(2)(a), 9.1.2(2)(b), 9.2, 9.2(4)(a), 9.2(4)(b), 9.2(4)(c), 9.2(4)(d), 9.2(4)(e), 9.2(4)(f), 9.2(4)(f), 9.2(4)(g), 9.2(4)(h), 9.3, 9.3(1), 10, 10(1), 10.1, 10.1(3), 10.2(1), 10.3(1), 10.4(1), 10.5(1), 13.3(1)
Explanatory Memorandum, Tribunals Amalgamation Bill 2014 (Cth) cl 375.
REASONS FOR DECISION
Member S Burford
21 April 2020
This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) on 16 January 2020 to cancel the Applicant’s Class BB Subclass 155 Return (Residence) visa (the visa) under s 501(2) of the Migration Act 1958 (Cth)
(the Migration Act). The Applicant was notified of the decision on 24 January 2020.
This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
BACKGROUND
The Applicant is a citizen of Indonesia who entered Australia a number of times in 1997 before arriving in 1998, at the age of 24, as the holder of a partner visa. He has usually resided in Australia since that time.
The Applicant separated from his wife several years ago. They have two minor children together, aged 8 and 15 at the time of this decision. The children currently live with their mother. There are Family Violence Restraining Orders (FVRO) in place against the Applicant with respect to each of the children. The FVROs were issued (as final orders) by Bunbury Children’s Court on 28 January 2019. They will remain in place until
27 January 2021.[1]
The Applicant has two adult children from previous relationships. One is 18 years old and lives in regional Western Australia.[2] The other is 31 years old and lives in Sumatra, Indonesia.[3]
On 23 May 2019, the Department of Home Affairs (the Department) sent the Applicant a notice of intention to consider cancellation (NOICC) under s 501(2), inviting him to comment on: whether he passed the character test as the information before the Department suggested that he may not pass the character test; and, should the decision-maker reasonably suspect that he did not, whether the decision-maker should exercise his or her discretion to cancel his visa. The letter enclosed information including:
·National Criminal History Check released 6 May 2019;
·Sentencing Remarks of Proceedings in the District Court of Western Australia, Perth on 20 December 2013;
·Statement of Material Facts of the Western Australia Police on 3 December 2018;
·Statement of Material Facts of the Western Australia Police, [Brief number omitted]; and
·Western Australia Police Incident Report dated 5 June 2018.
The Applicant signed an acknowledgement of the NOICC and authority to release information on 3 June 2019.[4]
On 13 November 2019, the Department sent the Applicant a further letter inviting him to comment on the following additional information:
·his National Criminal History Check released on 11 June 2019;
·his Departmental Movement Records; and
·
his Incoming Passenger Cards for arrivals between 14 March 2004 and
12 February 2016.
The Applicant signed an acknowledgment of receipt of this information on
14 November 2019.[5]
By letter dated 5 December 2019, the Applicant provided material and information to the Department in response to the NOICC and additional information letter.[6]
On 16 January 2020, the Delegate of the Minister cancelled the Applicant’s visa under
s 501(2) of the Migration Act.[7] The Department notified the Applicant of this decision by hand on 24 January 2020 at his local police station. The Applicant signed acknowledging receipt of the visa cancellation and accompanying documents on that date.[8]
The basis for the cancellation of the Applicant’s visa was that the Delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(e) of the Migration Act and he did not satisfy the Delegate that he passed the character test.
This was because the Applicant had been convicted in the District Court of Western Australia on 20 December 2013 of ‘Indecently Deals with a Child Over 13 and Under 16’ for which he was fined $3500.
The Delegate decided to exercise their discretion to cancel the Applicant’s visa giving weight to the primary consideration of the protection of the Australian community and taking into account the nature and seriousness of the Applicant’s conduct, the risk to the Australian community, the best interests of minor children and the expectations of the Australian community.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal, standing in the shoes of the Delegate, should exercise discretion to cancel the Applicant’s visa having regard to the primary and other considerations in Direction no. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79).
MATERIAL BEFORE THE TRIBUNAL
At the hearings, the Applicant made submissions, gave evidence and was
cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:
·Mrs M [redacted for publication], a friend of the Applicant; and
·Mr R [redacted for publication], a friend of the Applicant.
These witnesses gave evidence via telephone. Several unsuccessful attempts were made to contact a further witness, Mr H [redacted for publication], by telephone during the hearing.
The Respondent indicated that it did not object to Mr H’s [redacted for publication] unsigned statement being admitted into evidence and did not seek to challenge the brief character reference provided in the statement. The Tribunal accepted the statement on that basis.[9]
The Tribunal notes that the Applicant had also indicated prior to the first hearing that he wished to call Mr C [redacted for publication], another friend, as a character witness at the hearing. No statement from this proposed witness was provided to the Tribunal or the Respondent prior to the first day of the hearing. At the commencement of the hearing, the Tribunal raised with the Applicant the issue of the additional witness. The Tribunal queried what the purpose of the witness’ evidence was and he indicated that he was a friend and confirmed his evidence was as a character witness, along similar lines to the other witnesses who had provided statements. Having regard to the ‘two-day rule’ and to considerations of procedural fairness, the Tribunal determined that calling Mr C as a witness would be prohibited by s 600(6H) of the Migration Act. However, the Tribunal considered that the hearing could proceed on a fair basis without adjourning the hearing in order for those statement to be obtained and served to allow the witness to be called. The Applicant accepted this. In any event, and for unrelated reasons, the hearing was later adjourned to another day. Following the adjournment, the Applicant forwarded an email from Mr C [redacted for publication] stating that he was available to answer questions about the Applicant. The statement did not provide any detail as to the evidence Mr C [redacted for publication] proposed to give.
At the commencement of the resumed hearing, the Respondent objected to Mr C [redacted for publication] being called as a witness as his evidence would conflict with the two-day rule, specifically s 500(6H) of the Migration Act. The Tribunal indicated to the Applicant that calling Mr C [redacted for publication] would still break the ‘two-day rule’. The Applicant did not press calling Mr C [redacted for publication]. The hearing proceeded without him being called as a witness.
The Tribunal admitted the following documents into evidence.
·Exhibit A1 – Applicant’s email to the Respondent dated 20 February 2020;
·Exhibit A2 – Applicant’s handwritten letter to the Tribunal dated 30 January 2020 and received by the Tribunal on 3 February 2020;
·Exhibit A3
– Handwritten note from the Tribunal file recording conversation with
the Applicant on 5 February 2020;
·Exhibit A4 – Online application for review form completed on 6 February 2020;
·Exhibit A5 – Statement of Mrs M [redacted for publication] dated 25 March 2020;
·Exhibit A6 – Statement of Mrs W [redacted for publication] dated 24 March 2020;
·Exhibit A7 – Statement of Mr R [redacted for publication] dated 24 March 2020;
·Exhibit A8 – Statement of Mr H [redacted for publication] dated 23 March 2020;
·Exhibit A9 – Statement of the Applicant dated 31 March 2020;
·Exhibit A10 – Email submissions from the Applicant received on 3 April 2020 with the statement ‘I love Australia…’ including six images;
·Exhibit A11 – Email submissions from the Applicant received on 3 April 2020 with the statement ‘I have been a professional artist…’ including two images;
·Exhibit A12 – Email submissions from the Applicant received on 3 April 2020 with the statement ‘As part of my contribution to Australia…’ including one image;
·Exhibit A13 – Email submissions from the Applicant received on 3 April 2020 with the statement ‘I am a very proud father…’ including one image;
·Exhibit A14 – Email Mr C [redacted for publication];
·Exhibit A15 – Applicant’s email submissions dated 13 April 2020;[10]
·Exhibit R1
– Respondent’s outline of submissions on jurisdiction dated
19 February 2020;
·Exhibit R2 – Email marked in G documents as G21;
·Exhibit R3 – [Omitted in error – No Exhibit R3];
·Exhibit R4
– Respondent’s Statement of Facts, Issues and Contentions dated
17 March 2020;
·Exhibit R5
– G documents submitted to the Tribunal by the Respondent on
19 February 2020;
·Exhibit R6 – Supplementary relevant documents submitted by the Respondent on 1 April 2020;
·Exhibit R7 – Respondent's submissions on non-refoulement dated 9 April 2020;
·Exhibit R8 – Department of Foreign Affairs and Trade (DFAT), Country Information Report: Indonesia, dated 25 January 2019; and
·Exhibit R9 – An academic article on religion and heavy metal music in Indonesia published in 2019.
LEGISLATIVE FRAMEWORK
Sections 501(1) and (2) of the Migration Act provide:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
(Original emphasis.)
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or…
…
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or …
(Original emphasis.)
A ‘substantial criminal record’ is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Jurisdiction provisions
Section 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that an application must be made ‘in writing’.
Section 500(1)(b) of the Migration Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501 to cancel a visa.
Section 500(6B) of the Migration Act provides that if a decision under s 501 of the Migration Act relates to a person in the migration zone, an application to the Tribunal for review of a decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s 501G(1).
Section 501G(1) of the Migration Act provides that if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give the person a written notice that:
…
(e)sets out the decision; and
(f)specifies the provision under which the decision was made and sets out the effect of that provision; and
(g)sets out the reasons (other than non-disclosable information) for the decision; and
(h)if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) in a case where the decision relates to a person in the migration zone–sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such additional information (if any) as is prescribed.
Section 501G(2) of the Migration Act provides that the notice must be accompanied by two copies of every document, or part of a document, that:
(d)is in the delegate’s possession or under the delegate’s control; and
(e)was relevant to the making of the decision; and
(f)does not contain non-disclosable information.
Section 501G(3) of the Migration Act provides that a notice given under s 501G(1) must be given in the prescribed manner. The giving of documents relating to cancellation decisions is governed by reg 2.55 of the Migration Regulations 1994 (Cth) (the Regulations). Pursuant to reg 2.55(3)(a) of the Regulations, the Minister can give a document by handing it to the person personally.
Pursuant to reg 2.55(5) of the Regulations, if the Minister gives a document by handing it to the person, the person is taken to have received the document when it is handed to the person.
Direction no. 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that ‘[a] person or body must comply with a direction under subsection (1).’
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Migration Act, being Direction no. 79.
Paragraph 6.1 of Direction no. 79 sets out the Objectives of the Migration Act, with paragraphs 6.1(2) and (4) of Direction no. 79 being relevant to the Reviewable Decision which is currently before the Tribunal:
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under ss 501 and 501CA of the Migration Act, including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(a) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part A of Direction no. 79, with regard to the specific circumstances of the case, in deciding whether to cancel a person’s visa under s 501(2) of the Migration Act (paragraph 9(1) of
Direction no. 79). Specifically, paragraph 9(1) in Part A of Direction no. 79 provides:(1)In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 10 in Part A of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
JURISDICTION
At the initial directions hearing on the application, the Respondent submitted that the Application was filed out of time and that the Tribunal lacked jurisdiction to hear the matter. An interlocutory hearing on the question of jurisdiction was held on
26 February 2020. The Applicant appeared by telephone and represented himself.
The Respondent was represented by Mr Gerrard of the Australian Government Solicitor. The hearing was conducted with the assistance of an accredited interpreter in the English and Bahasa Indonesia languages.
The Respondent made written submissions on jurisdiction. The Applicant did not make any submissions.
The Applicant was notified by hand of the cancellation of his visa on 24 January 2020 and signed an acknowledgment that he had received the decision on that day.[11] The Applicant was taken into immigration detention on the same day.
The Applicant subsequently advised the Department that the notification package had been lost when he was taken into custody and he was provided with another copy.
The Applicant sent a handwritten letter to the Tribunal dated 30 January 2020 requesting an ‘extension of this application’ (the handwritten letter).[12] The letter was accompanied by the notification letter, decision and attachments (the G documents) and a ‘Yongah Hill IDC Appointment Notification Slip’ issued by Serco.[13] The letter was received by the Tribunal registry on 3 February 2020.[14]
The Tribunal records indicate that on 5 February 2020 an officer of the Tribunal spoke with the Applicant by telephone and explained to the Applicant that ‘he must lodge a written application either online or by completing an application for review of decision form’.[15]
On 6 February 2020 the Applicant lodged an application for review form online.[16]
The Respondent contended that as the application was filed on 6 February 2020, the Tribunal does not have jurisdiction to hear the application. This is because the Applicant was notified on 24 January 2020 in accordance with the statutory time frame and the time limit for filing an application for review expired on 3 February 2020. However, the Respondent accepted that it may be permissible for the Tribunal to treat the handwritten letter as a valid application.[17] The Respondent accepted that if the Tribunal concluded that the handwritten letter constitutes a valid application, this would have been filed within time.[18]
When is the Applicant taken to have received the notice?
The Applicant’s letter created some confusion over the date of notification, as the Applicant wrote that he had only received the documents on the 29 January 2020 but signed the acknowledgment receipt on 24 January 2020.[19] That document was countersigned by a Department officer on the same day. The acknowledgment receipt stated:
I acknowledge receipt of the Notice of visa cancellation under s501(2) of the Migration Act 1958 and two copies of the documents (Decision Record, Evidence and Material and Statement of Reasons) pertaining to the decision to cancel the visa formerly held by:
[The Applicant]
(Original emphasis.)
The Applicant provided a copy of that acknowledgement to the Tribunal with his handwritten letter.
The Respondent’s explanation for the confusion was that the Applicant misplaced the notified documents on his relocation to detention and later requested and was provided with a further copy at a meeting at the detention centre on 29 January 2020.[20]
The Tribunal accepts this account of events as plausible, particularly given the Applicant was taken into immigration detention on the day he was notified – 24 January 2020. This aspect of the timeline was not challenged by the Applicant.
The Applicant stated at the hearing that he was given the notice at his local police station on 24 January 2020. He said an officer of the Department gave him the notice and documents but they were handed to the police as he was handcuffed.[21] He said the documents were then lost by the police while he was in transit to the detention centre.
The difficulty with the Applicant’s account of not receiving the documents on the
24 January 2020 was that he signed for receipt of the documents which indicates he was able to use his hands at that point to sign. The Tribunal regards that on the evidence and having regard to the signed receipt, the Applicant was handed the documents and signed for receipt. The documents were then passed to the police with the Applicant’s personal effects. As his visa had been cancelled, he was then handcuffed and transported to the detention centre. In any event, the Applicant did not suggest he did not sign the acknowledgement. Rather, he was concerned that he did not receive his copy of the documents back from the police for some time later, following his transfer to immigration detention.
The Tribunal is satisfied on the evidence that the Applicant was properly notified on
24 January 2020.
By giving a document via one of the prescribed methods, a person is taken to have received the document at the time specified in the legislation, regardless of whether the document was actually received.[22] Deemed receipt does not create a ‘rebuttable presumption’.[23]
The Tribunal finds that the notice was handed to the Applicant on 24 January 2020 and he signed and dated an acknowledgment of this on that date.
As noted above, s 500(6B) of the Migration Act requires that an application must be lodged within nine days after the day on which the Applicant was notified. In this matter, that would fall on Sunday 2 February 2020. Consequently, the last day for the Applicant to lodge an application for review was the next business day, Monday 3 February 2020.[24]
The Respondent contended that the Applicant’s application for review of the Delegate’s decision was made on 6 February 2020 and consequently is three days out of time. As a result, the Respondent contended that it is not a valid application and this Tribunal does not have jurisdiction in respect of this matter.
Section 500(6B) provides that there is no power or discretion to extend the time for making an application for review.[25]
Can the Applicant’s handwritten letter be regarded as making a valid application?
Section 500(1)(b) of the Migration Act permits applications to be made to the Tribunal for review of decisions of a delegate of the Minister made under s 501. Unlike applications to the Tribunal under Part 5 (s 347(1)(a)) and Part 7 (s 412(1)(a)) of the Migration Act, there is no express requirement for an application to the Tribunal under s 500(1)(b) to ‘be made in the approved form’. Paragraph 29(1)(a)(i) of the AAT Act requires that an application must be made ‘in writing’. The Explanatory Memorandum to the Tribunals Amalgamation Act 2015 (Cth) which amended s 29 of the AAT Act states as follows:[26]
Existing paragraph 29(1)(b) provides that a person may use a prescribed form when making an application. New paragraph 29(1)(b) would not include this requirement. The removal of the requirement for the application forms to be a prescribed form would permit the President to approve forms administratively, thereby providing more flexibility to the Tribunal to create and amend forms from time to time to meet the needs of its various jurisdictions.
The Respondent accepted that it would be permissible for the Tribunal to regard the handwritten letter as an application for the following reasons:
·Firstly, whilst the AAT Act requires an application to be made ‘in writing’, there is nothing in the AAT Act which states that it must be made on the prescribed form. The handwritten letter, whilst referring to an extension of time, is an application made in writing. In any event, by being accompanied by the decision under review and the G documents it is apparent that the Applicant was seeking review of the cancellation decision.
·
Secondly, to find that the handwritten letter was an application would be consistent with Federal Court and Tribunal decisions. In Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 the Federal Court found that an application to the Tribunal was not invalid even though it was not accompanied by the
G documents as required by s 500(6C). Similarly, in Gallagher and Minister for Immigration and Citizenship [2011] AATA 10 and Reedy and Minister for Immigration and Citizenship [2011] AATA 363, the Tribunal found that an application that was lodged within time but not accompanied by the prescribed fee was nevertheless a valid application provided the fee was paid prior to the determination of the matter (although the Respondent notes that the Tribunal reached a different conclusion in Eggu and Minister for Immigration and Citizenship [2010] AATA 1003).[27]
·The Tribunal notes that in Mahia and Minister for Immigration and Citizenship [2011] AATA 789, the Tribunal was prepared to treat a letter from an applicant as an application.
·Finally, in the recent decision of Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, the Tribunal accepted that it may be permissible to treat an email referring to a prior, latent application as lodging an application.
The Tribunal and the Courts have been prepared to treat as ‘substantially compliant’, applications that are absent mandatory accompaniments such as the prescribed fee and the statutorily required G documents as valid applications. In the Tribunal’s view, it follows that the correct and preferable approach is to accept an application is valid if it is not made in the correct form in circumstances where an application is intended as such and has technically been made in writing, albeit not fully expressed in clear terms.
Finally, the Respondent submitted, and the Tribunal agrees, that an acceptance of the handwritten letter sent to the Tribunal as an application would be consistent with the Tribunal’s stated objectives as set out in s 2A of the AAT Act.
Findings on jurisdiction
For the above reasons, the Tribunal accepts the handwritten letter from the Applicant as a valid application. In light of this finding, the Tribunal finds that the Application was made within the statutory timeframe and that the Tribunal has jurisdiction to review the Reviewable Decision.
PROCEEDINGS BEFORE THE TRIBUNAL
Following the interlocutory hearing on jurisdiction, the application was listed for hearing on 3 April 2020. Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday,
26 March 2020. The Tribunal made orders for the parties and witnesses to appear via means of electronic communications. The Tribunal took steps throughout the hearing process to ensure the proceedings could continue to be conducted fairly to the parties consistent with the Tribunal’s obligations and objectives under the AAT.The hearing commenced on 3 April 2020 in Perth. The Applicant appeared via videoconference from immigration detention and the Respondent appeared via telephone.[28] The hearing was conducted with the assistance of an accredited interpreter in the English and Bahasa Indonesia languages who also attended by telephone.
The Applicant was unrepresented in relation to the application. The Respondent was represented by Mr Arran Gerrard, from the Australian Government Solicitor.
At the commencement of the hearing, the Respondent noted that they had been informed that morning that a hearing bundle had been couriered to the Applicant for use during the hearing but had not arrived at Yongah Hill in time for the hearing. The Respondent arranged for a copy of the material to be printed and handed to the Applicant at Yongah Hill. The Tribunal observed that the Applicant was handed a large pile of papers during the preliminary phase of the hearing. The Respondent indicated this material included a number of pages included in the Supplementary Relevant Documents bundle which had been filed with the Tribunal on 1 April 2020. That bundle contained material produced on summons by the Western Australian Police and the Western Australian Department of Justice. The Respondent indicated that it intended to take the Applicant to some of that material in cross-examination.
The Tribunal expressed a concern that while the Applicant may have had some of the material in the bundle for some time, it appeared likely that a significant portion of the material had not previously been available to him in hard copy. The Tribunal was also concerned that the format of the material would make it difficult for the Applicant to locate and read new material at the hearing.
Following opening submissions from the Respondent, the hearing was adjourned for a period to allow the Applicant time to read the material and to ascertain the feasibility of rescheduling the hearing to a later date. On return, it was agreed that the matter would be adjourned to 8 April 2020 to allow the Applicant an opportunity to consider the material. The Tribunal contacted the Applicant’s witnesses prior to adjourning the matter to confirm they would be available on the later date.
Following the hearing, and prior to the close of business on 3 April 2020, the Applicant emailed additional material to the Respondent. The material was forwarded to the Tribunal by the Respondent. The material is discussed in further detail below.
The hearing recommenced on 8 April 2020. The Applicant appeared by videoconference from immigration detention. The Respondent also appeared via videoconference.
The hearing was again assisted by an accredited interpreter in the English and Bahasa Indonesia languages who appeared via telephone. Evidence was taken from two witnesses who appeared via telephone.
The additional material forwarded by the Applicant on 3 April 2020 was admitted into evidence. The material submitted by the Applicant raised a claim by the Applicant that he feared harm on return to Indonesia because he had been threatened by Islamic fundamentalists over a social media post in 2016 showing support for ‘LGBT’ rights in Indonesia. An additional claim that the Applicant faced harm as an atheist on return to Indonesia arose during testimony. These claims are dealt with further below. These claims had not been previously raised and limited evidence was offered by the Applicant in support of them. No country information was made available to the Tribunal at this time.
Given the limited material before the Tribunal on which to assess any non-refoulement issues arising on the application and the late timing of the claims, the Tribunal requested the Respondent to provide written submissions on the non-refoulement consideration together with any relevant available country information prepared by DFAT by 9 April 2020. In light of the timeframe for the making of a decision, the Tribunal adjourned the hearing following closing submissions to 15 April 2020 for a short further hearing to allow the Applicant to make any submissions in response.
The Respondent filed submissions to the Tribunal consistent with this order on
9 April 2020. This included a copy of the DFAT Country Information Report: Indonesia dated 25 January 2019 and an article concerning heavy metal music in Indonesia published in 2019 in which the Applicant was mentioned.
On Monday 13 April 2020, a public holiday, the Applicant submitted an email responding to the matters raised in the Respondent’s submissions on non-refoulement.[29]
The hearing resumed on 15 April 2020. A short further hearing was held. The Applicant indicated that he relied on the written material provided as his submissions in reply of
13 April 2020. The Tribunal accepted the material on that basis. The Respondent did not object to the Applicant’s material being submitted on that basis. However, the Respondent submitted that the two reports included as hypertext links in the Applicant’s submissions would be ‘documents’ submitted in breach of s 500(6J) of the Migration Act and objected to the Tribunal having regard to those documents on that basis.
The Tribunal noted at the hearing that as the decision of the Tribunal was due on the
17 April 2020 and the business day on which the document was received was
14 April 2020, no further adjournments would be feasible as the hearing would have to be held on7 the day the decision was due. Having regard to the fact that issues referred to in the referenced reports appeared also to be covered in the DFAT Country Information Report provided by the Respondent, the Tribunal regarded that it could conduct the hearing thoroughly and fairly without a further adjournment to enable this material to be tendered as evidence even if it accepted the Respondent’s submissions.[30] Accordingly, no further adjournment was granted. These documents are considered further below in the context of the Tribunal’s consideration of non-refoulement obligations.
Issues concerning the ‘two-day rule’
The issue of whether the Applicant had complied with s 500(6J) and s 500(6H) of the Migration Act (the two-day rule) arose on a number of occasions during the hearing.
The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378, 389-390 (Goldie). The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by \][poiuytrewhe application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
In applying the two-day rule, the Tribunal must be mindful not to fall into jurisdictional error by failing to consider a primary consideration. The two-day rule does not prevent the matter from being adjourned to ensure that the Tribunal’s ‘review is conducted thoroughly and fairly’.[31] The High Court has strongly indicated that adjourning a hearing provides an opportunity for the requirements of the two-day rule to be complied with.[32] Further, information which is elicited under cross-examination which may support an applicant’s case is not excluded.[33] Submissions in reply to issues raised by the Respondent are also not excluded (Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, 500 (Jagroop).[34] The Full Court of the Federal Court in Jagroop at 502 [96] stated:
We conclude that the words “in support of the person’s case” in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.
(Emphasis added)
The High Court in Uelese v Minister for Immigration and Border Protection
(2015) 256 CLR 203 rejected the suggestion that the final part of the observation by the Full Court in Jargroop should be read as a qualification excluding information that could reasonably have been anticipated to be supportive of the applicant’s case two days prior to the commencement of the hearing. The High Court noted the Federal Court’s comments in this regard were ‘tentative observations’ and not a qualification.[35] In Uelese the High Court observed:[36]Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal’s understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to “ensure that every party to a proceeding…is given a reasonable opportunity to present his or her case”; s 33(1)(c), which allows the Tribunal to “inform itself on any matter in such manner as it thinks appropriate”; and s 33(2A)(a), which allows the Tribunal to “require any person who is a party to the proceeding to provide further information in relation to the proceeding”.
When issues of compliance with the two-day rule arose during the conduct of this review, the Tribunal was mindful of its obligation to afford procedural fairness to the parties and to consider all relevant issues arising on the review including those matters raised in Direction no. 79. Where issues arose concerning the two-day rule in the presentation of evidence or submissions, they are noted in the Tribunal’s decision.
THE APPLICANT’S OFFENDING HISTORY
The Applicant’s offending history is set out in the National Criminal Check ‘Nationally Coordinated Criminal History Check Results Report’ dated 12 June 2019[37] and the Western Australia Police ‘History for Court – Criminal and Traffic’ report dated
24 March 2020.[38]
The Applicant’s offending history is summarised in the following table:
Court
Court Date
Offence
Offence Date(s)
Court Result
Bunbury Magistrates Court[39]
20 June 2019
Failed to comply with reporting obligations; Community Protection (Offender Reporting) Act 2004 s 63(1)
30 January 2019
Fine: $1000
Midland Magistrates Court[40]
22 May 2019
No authority to drive (fines suspended); Road Traffic Act 1974 s 49(1)(a) & (3)(d)
26 April 2019
Fine: $200
Bunbury Magistrates Court
18 March 2019
Driving with prescribed illicit drug; Road Traffic Act 1974 s 64AC(1)
(Method is unknown)
31 August 2018
Fine: $450
Mandurah Magistrates Court
5 February 2019
Possess a Prohibited Drug (Cannabis); Misuse of Drugs Act 1981 s 6(2)(b)
23 August 2018
Fine $500 (global)
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981 s 7B(6)
Fine $500 (global)
Perth Magistrates Court
17 December 2018
Re-hearing of 15 June 2018 Trial Hearing
2 June 2018
Fine: $1500
Breach Family Violence Restraining Order or Violence Restraining Order; Restraining Orders Act 1997 s 61(1)
9 August 2017
Fine: $300
Breach of Violence Restraining Order; Restraining Orders Act 1997 s 61(1)
30 January 2017
Suspended imprisonment order expired and resentenced.
Fine: $1000
Breach of Bail Undertaking; Bail Act 1982 s 51(1)
23 November 2017
Fine: $200
Perth Magistrates Court[41]
8 November 2017
Possess a prohibited drug (Methylamphetamine); Misuse of Drugs Act 1981 s 6(2)(r).
11 October 2017
Fine $500
Bunbury Magistrates Court
24 March 2017
Breach of Violence Restraining Order
17 January 2017
Fine: $1000 (global)
Breach of Violence Restraining Order
16 January 2017
Fine: $1000 (global)
Breach of Violence Restraining Order
30 January 2017
Suspended Imprisonment Order: 6 months 1 day Concurrent Suspended 12 months from 24 March 2017
12 January 2017
Criminal Damage or Destruction of Property; Criminal Code (WA) s 444(1)(b)A
30 December 2016
Fine: $400
Perth District Court of Western Australia
20 December 2013
Indecently Deals with a Child Over 13 Under 16; Criminal Code s 321(4)
31 January 2010
Fine: $3500
Fremantle Court of Petty Sessions
2 May 2003
Unlawful Wounding
Not disclosed
8 months imprisonment
31 January 2003
Unlicensed Vehicle; Road Traffic Act 1974 s 15(3)
3 January 2003
Fine: $150
Perth Court of Petty Sessions
12 March 2002
Assault Occasioning Bodily Harm
Not disclosed
Fine: $1200
The Applicant’s convictions primarily comprise of violent offending, breaches of violence restraining orders and reporting obligations, prohibited drug offences, driving and traffic offences and general offending. He also has a conviction for a sexual offence involving a child. In summary, the Applicant’s offences include the following offences for which the Applicant was convicted between March 2002 and June 2019:
(a)a conviction for indecently dealing with a child over 13 and under 16;
(b)assault occasioning bodily harm and unlawful wounding offences;
(c)criminal damage or destruction of property;
(d)breaches of violence restraining orders (VROs) and FVROs;
(e)breaches of court imposed orders including bail and reporting obligations;
(f)several drug related offences; and
(g)traffic offences.
Child sexual offence
On 20 December 2013, the Applicant was convicted in the District Court of Western Australia of ‘Indecently Dealing with a Child over 13 and under 16’ contrary to s 321(4) of the Criminal Code Act Compilation Act 1913 (WA).[42] The offence occurred between
March and April 2010.[43] The victim was a 14-year-old girl who was working as a volunteer at the tattoo studio where the Applicant was working or was a co-owner. The victim was involved ‘mainly cleaning the studio and the tattoo tools’ and was permitted to observe and learn from the tattoo artists. The Applicant was convicted of this offence at a jury trial and was fined $3500. The statutory maximum penalty for this offence at the time was imprisonment of a term not exceeding seven years.[44] He was also made a reportable offender.[45]He was found not guilty of all the other offences with which he was charged (six charges) on that occasion. Accordingly, the Tribunal has not had regard to the other offences with which the Applicant was charged.
The circumstances of the offence are outlined in the transcript of Herron DCJ’s sentencing remarks which indicate that, at some time between March 2010 and April 2010, the Applicant was driving the victim to the tattoo studio. [46] While the car was stationary at a set of lights, the Applicant placed his hand on her thigh. It was alleged in the victim’s evidence that the Applicant asked whether he could put his hands down her pants. The Sentencing Judge did not make any findings that that occurred.[47] The Applicant denied in evidence before the Tribunal that it occurred. The Tribunal has limited its consideration to the findings of the Sentencing Judge.
The Sentencing Judge was satisfied that the Applicant placed his hand on the victim’s upper thigh in a sexual way which constituted the indecent dealing alleged in the indictment.[48] At the time of the offence, the victim was 14 years of age and the Applicant was 36 years old.[49]
In evidence before the Tribunal the Applicant maintained that he had been set up by the co-owner of the tattoo shop who had wanted to take over the business. For reasons detailed elsewhere in this decision, the Tribunal does not accept the Applicant’s alternative account of the events surrounding the conviction for which he was found guilty by a jury.
Violence related offences
The Applicant’s first recorded conviction was on 12 March 2002 for ‘Assault Occasioning Bodily Harm’. The victim of the assault was his then wife.[50] The Applicant plead guilty to the offence and was fined $1200.[51]
The details of the offence are provided in the Statement of Material Facts.[52] According to the Statement of Material Facts, the Applicant and the victim had an argument over the victim’s plans to leave the marriage. The Applicant grabbed the victim by the wrist and bit her right bicep while she was attempting to retrieve a personal letter which had been taken by the Applicant. The Applicant left the house and later returned. When he returned to the house he ‘grabbed the [victim] around the throat, pushing her against a wall’.
The Applicant then forced the victim to the ground and stood over her applying pressure to her throat. The victim broke free of his grasp and the Applicant continued to assault her, ripping her top and dragging her towards the front door stating he was going to ‘embarrass her’. According to the Statement of Material Facts, the victim suffered bruising across her forearms, neck, shoulder and back.
The Applicant contested the account contained in the Statement of Material Facts stating that:[53]
it was just a scuffle because I was trying to get the paper off my first wife.
And maybe during the scuffle that she got hurt. It wasn’t intentional and I wasn’t attacking her physically with intention to harm her.
The Applicant admitted biting his former wife but said it ‘wasn’t a very big damage’. He did not offer any corroborating evidence in support of his alternative account of events.
For reasons detailed elsewhere in this decision, the Tribunal does not accept the Applicant’s alternative account of the events surrounding the charge for which he pled guilty.
On 2 May 2003 the Applicant was convicted of ‘Unlawful Wounding’. He was sentenced to eight months’ imprisonment for this offence.
The circumstances of this offence are set out in the Statement of Material Facts.[54]
In around April 2002 the Applicant was at a nightclub in Perth. He became engaged in an argument with another person, who is known to him, over a female person at the nightclub:[55]
The argument continued to escalate and [the Applicant], holding a glass in his left hand, struck the complainant to the right side of his face. This resulted in the complainant receiving a deep laceration that extended from his eyeline down to his mouth.
Before the Tribunal the Applicant contested the account of the offence contained in the Statement of Material Facts claiming that he used the glass to protect himself from a kick from the victim.[56] He had previously stated he had accidentally woundered the person with a glass.[57] He did not offer any corroborative evidence in support of his alternative account of events. For reasons detailed elsewhere in this decision the Tribunal does not accept the Applicant’s alternative account of the events surrounding the offence.
Breaches of VROs and FVROs and related offences
The Applicant has been convicted on a number of occasions of breaching VRO’s and FVRO’s, principally issued for the protection of his former partner, members of her family and their two children. Two of those orders remain in place.
The Applicant has been convicted on five occasions between March 2017 and
December 2018 of breaching a VRO or FVRO. The offences occurred in January 2017 and August 2017.
According to the Statements of Material Facts, with respect to several of the offences, the breaches concerned the Applicant repeatedly texting and phoning his former partner in breach of the orders.[58] Another concerned him parking outside their property and speaking to his former partner again in breach of the orders.[59]
Before the Tribunal the Applicant contested the account of the offences contained in the Statements of Material Facts claiming that he was merely trying to organise access to or contact with his children.[60] He did offer any corroborative evidence in support of his alternative account of events. For reasons detailed elsewhere in this decision the Tribunal does not accept the Applicant’s alternative account of the events surrounding the offence.
On 12 January 2017 the Applicant was convicted of ‘Criminal Damage or Destruction of Property’. He received a fine of $400.[61] The Statement of Material Facts states that the Applicant had a verbal argument with his former partner’s father.[62] He threw a block of wood into the victim’s parked vehicle causing $300 worth of damage to the front windscreen.
At the Tribunal hearing the Applicant claimed he was not guilty of this offence because it was his own car.[63] For reasons detailed elsewhere in this decision, the Tribunal does not accept the Applicant was not guilty of the offence.
Traffic and drug related offending
The Applicant has also been convicted of several drug and traffic related offences.
On 31 January 2003 he was convicted of having an unlicensed vehicle and fined $150. On 5 February 2019 he was convicted of ‘Possess a Prohibited Drug (Cannabis)’ and ‘Possessed Drug Paraphernalia in or on which there was a Prohibited Drug or Plant’.
He received a global fine of $500. On 8 November 2017 he was convicted of ‘Possess a Prohibited Drug (Methylamphetamine)’ and was fined $500.[64]His most recent conviction was on 18 March 2019 for ‘Driving with Prescribed Illicit Drug’. He received a fine of $450 for this offence.[65]
At the hearing the Applicant denied these offences and claimed the drugs he had been convicted of possessing belonged to clients whom he had been driving in his car.[66]
For reasons detailed elsewhere in this decision, the Tribunal does not accept the Applicant was not guilty of the offences.
The Applicant’s offences are considered further below.
Applicant’s denial of offences
As noted above, the Applicant consistently challenged the factual circumstances of the offences in cross-examination at the hearing. The Applicant consistently maintained he was not guilty of the offences for which he had been convicted. When it was directly put to him that he did not show remorse for his behaviour he insisted this was because he had not committed the offences:[67]
MR GERARD: It seems to me that you were not really remorseful for much of your criminal conduct, [The Applicant], is that a fair assessment?
APPLICANT [VIA INTERPETER]: Not really because if I don’t do it why should I …
The Applicant’s denial of the offences raised the issue of the extent to which it was open to the Tribunal to ‘go behind’ the convictions or accept the Applicant’s alternate account of the events surrounding them.
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP),[68] Bromberg J provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction. According to the cases surveyed by His Honour, the Tribunal’s assessment of the circumstances of an applicant’s offending will be an important part of its consideration as to whether to exercise its discretion. As the discussion in HZCP demonstrates, the question of whether and to what degree the Tribunal can investigate the facts underlying an applicant’s convictions is an important one and has been the subject of detailed judicial consideration.[69]
In HZCP, Bromberg J’s detailed consideration of the authorities,[70] summarised the principles to be applied as follows (at [78]):
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.
His Honour’s judgment was considered and upheld on appeal to the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 where McKerracher J stated [at 77]:
As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a ‘heavy onus’ on the applicant where they seek to challenge the facts upon which those convictions are based.
Further, Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000)
106 FCR 313 (Ali) at [43] supported the proposition that the heavy onus an applicant faces in challenging the facts on which a conviction is based will be more easily met where the applicant pleads guilty to an offence. Her Honour limited those comments to a conviction and sentence upon which the power to deport is not based. Her Honour noted:in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act[71] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
(Emphasis added.)
The Tribunal considers that it is bound by the principles espoused in the authorities and in particular by the decision of the Full Court of the Federal Court in HZCP.
The Tribunal regards that it is not entitled to question the fact of a conviction once it has been determined by a court, however, there is some scope to examine the circumstances surrounding the offending. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 358, the Federal Court stated that:[72]
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
Nevertheless, the Applicant did not offer any evidence in support of his contested versions of events which might discharge the heavy onus which he bears to convince the Tribunal to adopt an alternate version or characterisation of the facts of offences for which he plead guilty, was convicted by a court or, in the case of the indecent dealing offence, was found guilty by a jury. Having regard to the offences and to the authorities, the Tribunal considers it appropriate to accept the facts of the offences contained in the Sentencing Judge’s comments and the evidence of factual circumstances in contemporaneous official records including the Statement of Material Facts.
Having regard to all the evidence, the Tribunal is unable to accept the Applicant’s alternate version of events as credible, even to the limited extent it is open to the Tribunal to do so. This is because the evidence falls well short of discharging the ‘heavy onus’ which falls on an Applicant seeking to challenge the facts upon which a conviction is necessarily based. The Tribunal is not satisfied on the Applicant’s evidence that there is any basis for going behind the convictions, or to reject the facts as found by the Sentencing Judge.
In this regard the extent of the Applicant’s denial of the facts of the offences gave rise to a concern for the Tribunal both with regard to his credibility as a witness but also to the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences. These matters are dealt with further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Migration Act. Section 501(6)(e)(i) provides that a person does not pass the character test if a court in Australia or a foreign country has ‘convicted the person of one or more sexually based offences involving a child’.
The Applicant’s conviction for ‘Indecently Deals with a Child Over 13 and Under 16’ is a sexually based offence involving a child.
Accordingly, the Tribunal finds that the Applicant has a substantial criminal record by virtue of s 501(6)(e)(i) of the Migration Act, having regard to his conviction for ‘Indecently dealing with a child under 13 and over 16’.
On this basis, and having considered the Applicant’s criminal record, the Tribunal reasonably suspects that the Applicant does not pass the character test by virtue of
s 501(6)(e) of the Migration Act. The Applicant has not satisfied the Tribunal that he passes the character test. On this basis the Tribunal is satisfied that the Applicant does not pass the character test.
Further and in the alternative, s 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by
s 501(7) of the Migration Act.
Section 501(7)(d) of the Migration Act provides that a person has a substantial criminal record if they have been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.
Also as noted in the Applicant’s criminal history above, on 2 May 2003 the Applicant was convicted of ‘Unlawful Wounding’ in the Fremantle Court of Petty Sessions and sentenced to a term of imprisonment of eight months. On 24 March 2017 the Applicant was convicted of ‘Breach of Violence Restraining Order’ in the Bunbury Magistrates Court and was sentenced to six months and one day imprisonment (suspended). The Tribunal notes that s 501(7) is concerned with the sentences imposed in person rather than the term of imprisonment actually served.[73] The Tribunal finds that the Applicant has been sentenced to a combined total of over 14 months’ imprisonment for his offences.
The Tribunal finds, in the alternative, that the Applicant has a substantial criminal record pursuant to s 501(7)(d) of the Migration Act.
Having considered the Applicant’s criminal record, the Tribunal reasonably suspects that the Applicant does not pass the character test by virtue of s 501(6)(e) of the Migration Act. In the alternative, the Tribunal suspects the Applicant does not pass the character test by virtue of s 501(6)(a). The Applicant has not satisfied the Tribunal that he passes the character test. On this basis the Tribunal is satisfied that the Applicant does not pass the character test.
IS THE TRIBUNAL SATISFIED THAT THE DISCRETION TO CANCEL THE VISA SHOULD BE EXERCISED?
The Applicant argues that the discretionary power to cancel his visa under s 501(2) of the Migration Act should not be exercised. Accordingly, the Tribunal, standing in the shoes of the decision-maker, will consider whether to exercise this discretionary power by considering the relevant primary and other considerations in Direction no. 79.
Following the notification of the intention to cancel his visa, the Applicant made representations to the Department requesting that his visa not be cancelled. This included a written statement from the Applicant, a supporting statement from a friend and photographs with his children.[74]
Before the Tribunal, the Applicant’s online application, emailed written statements[75] and oral submissions to the Tribunal outlined the Applicant’s central contentions as to why his visa should not be cancelled in similar terms to submissions made before the Department. The Applicant raised an additional claim during the hearing before the Tribunal that he would face harm if he was removed to Indonesia, firstly from Muslim extremists or Indonesian authorities on the basis that he had posted a video supporting the rights of LGBT people in Indonesia and secondly, as an atheist.[76] These additional contentions or claims are considered further below.
In his online application to the Tribunal,[77] the Applicant stated that he thought that the Delegate’s decision was wrong because:
I believe [the Delegate’s decision] is not in my best interest due to a fact that I am in the middle of Court proceedings with the family court WA and I have no criminal history for the last 2 years, and prior to that all my offences were minor. i would like the department to kindly reconsider their decision based on this information [sic].
These reasons were supported in his submissions to the Tribunal.
The Respondent submitted that the Applicant had committed a series of serious offences, including against vulnerable members of the community.[78] Having regard to
Direction no. 79, the nature of the Applicant’s conduct is serious. Further, the nature of the harm to the community should the Applicant commit similar offences, in particular sexual offences against children or domestic violence offences, is such that the community should not be expected to tolerate any risk of reoffending. The Applicant is not remorseful, denies his offending, has a history of deceitful behaviour and has not provided any evidence of rehabilitation. This gives rise to a significant concern with respect to the risk of re-offending. The Respondent submitted that the expectations of the Australian community were that the Applicant’s visa would be cancelled.
The Respondent also submitted that the Applicant had provided little evidence with respect to the best interests of his children but accepted that it was in their interests that the cancellation of the Applicant’s visa should be set aside. However, the Respondent contended that this consideration should be given less weight than would ordinarily be the case given the lack of information regarding the children. Further, the Respondent contended that while the strength, nature and duration of the Applicant’s ties to Australia and the impediments to his removal may weigh in his favour, they should be afforded less weight than other primary considerations.
With regard to the Applicant’s claims that his removal would give rise to an issue of Australia’s non-refoulement obligations, the Respondent contended that to the extent it was open to the Tribunal to consider these claims, they lacked credibility and should not be entertained.[79]
The Respondent submitted that the Australian community would expect the Applicant’s visa to be cancelled given the nature of his criminal offending and that this and the protection of the Australian community outweighed other considerations in the Applicant’s favour, including the best interest of his minor children. The Respondent submitted on this basis that the Applicant’s visa should remain cancelled.
These submissions are considered further below.
First primary consideration: Protection of the Australian Community (paragraph 9.1)
Paragraph 9.1(1) of Direction no. 79 provides that when decision-makers are considering the protection of the Australian community they:
(1)… 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 9.1(2) of Direction no. 79 continues on to provide that:
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 9.1.1)
Paragraph 9.1.1(1) of Direction no. 79 further provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h) The cumulative effect of repeated offending;
i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the noncitizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(k)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal notes that the latest Country Information Report: Indonesia issued by
DFAT indicates that freedom of expression in Indonesia is restricted on a number of issues including religious expression outside the six officially recognised religions (which do not include atheism) and discussion of LGBTI rights.[170] The report notes with respect to the discussion of LGBTI rights:[171]In October 2018, two men were arrested for hosting an online social media page to connect LGBTI people and charged for spreading immorality under the Electronic Transactions and Information Law … In late 2018, observers have noted a nascent trend of district level governments considering local regulations to ‘ban’ LGBTI, however it is not currently reflected in discussions at the national policy level.
The report goes on to note:[172]
DFAT assesses that LGBTI people face a high risk of societal discrimination: traditional views about sexuality and gender restrict their participation in the workforce and the broader community. This applies particularly in areas outside of Jakarta in Bali and for those from poorer backgrounds. Those perceived to be LGBTI may face a risk of violence, particularly if living in this religiously conservative areas, including Muslim and Christian communities. DFAT assesses that LGBTI people face a moderate risk of homophobic, transphobic or anti-waria violence. LGBTI individuals face a moderate risk of official discrimination due to national laws that discriminate against them based on their sexuality, and due to official attitudes.
With respect to atheists, the report notes:[173]
Professed atheism in Indonesia is uncommon. In practice, Indonesian atheists may hide their beliefs…
DFAT assesses that a person who is openly atheist would face a moderate risk of societal and official discrimination and a low risk of violence. The risk of either societal discrimination or violence would increase if the person publicly promoted atheism or tried to convert others. The Respondent submitted a further academic article which mentions the Applicant as having been interviewed in his role as a heavy metal music promoter.[174] In the article, published in 2019, the Applicant was asked about religious difference in Indonesia and the impact on the heavy metal music industry. The Applicant was recorded as referring to religion not being a problem in Indonesia. The Respondent submitted this was at odds with the Applicant’s claims to fear harm in Indonesia on the basis of his religious beliefs.
The Applicant contended that the article submitted by the Respondent recorded his efforts to open up opportunities for bands from Indonesia and Australia. He also contended the article also mentioned the Islamic fundamentalist organisation Front Pembela Islam (FPI) who had targeted him.
The Respondent submitted that the Applicant had not articulated proper claims and had not provided probative evidence to support a finding that he faces harm in Indonesia. The Respondent submitted that the late nature of these claims raised serious concerns regarding their credibility and that there was otherwise no evidence before the Tribunal on which it could base a finding that the Applicant’s return to Indonesia would result in a breach of Australia’s non-refoulement obligations.
The Tribunal accepts the Respondent’s submission that the evidence provided to support the claim that non-refoulement obligations arise with respect to the Applicant was not sufficiently probative for the Tribunal to make a finding in the Applicant’s favour. In this regard the Tribunal notes her Honour’s comments in Omar suggesting that a ‘serious and substantive basis in fact and law’ must be provided to support the assertion that
non-refoulement obligations arise. In the Tribunal’s opinion, the Applicant failed to provide any evidence other than by his assertions that he would face harm in Indonesia due to a 2016 video post on social media supporting LGBT rights in Indonesia, as an atheist, as a promoter of heavy metal music or for any other reason. Further, even if the Applicant’s evidence was to be accepted on its own, in the Tribunal’s view there is a real question as to whether the harm claimed would meet the threshold required for a non-refoulement obligation to arise.In this regard the Tribunal notes that the Applicant provided no evidence that he has suffered harm or come to the attention of the authorities or any other group in the past for these reasons or that he is at a real risk of serious or significant harm. In any event, the Tribunal has serious credibility concerns regarding the Applicant’s claims to fear harm on return to Indonesia for the reasons claimed. The Tribunal has significant concerns about the credibility of the Applicant’s claims. Chief among the Tribunal’s concerns was the fact the Applicant raised claims to a fear of harm on return to Indonesia very late. He was unable to provide a satisfactory explanation for why these claims had not been raised earlier, including in response to the NOICC. In the Tribunal’s view, if the Applicant were genuinely fearful that he would face harm from Muslim extremists, the FPI or Indonesian authorities on return to Indonesia, it is reasonable to expect he would have raised these issues when invited to do so by the Department. This causes the Tribunal to find that the Applicant does not genuinely hold a fear of harm on return to Indonesia for these reasons.
Further, on critical aspects of his claims he struggled to provide meaningful detail and context or corroborative evidence. This was despite the fact he claims to have been well known for widely published statements promoting his atheism and LGBT rights. Again, it is reasonable to expect that where such claims are credible, there would be evidence available to corroborate these claims. In the Tribunal’s view the Applicant’s explanation that he had deleted all evidence of such material was not satisfactory having regard to the sort of activity he claimed to have been engaged in as the fact he relied on a copy of the Facebook post which did not provide details of the associated threats.
Further, the claims are not consistent with the Applicant’s extensive return travel to Indonesia. He made no claims to have faced harm on these return trips notwithstanding he claims to have been a professed and well know atheist for ten years. He travelled repeatedly to Indonesia during the time. Further, while he claims not to have travelled to Indonesia since his LGBT comments ‘went viral’ in late 2016 due to threats from Muslim extremists, he was unable to say how he would have been at risk in Indonesia from persons who merely posted comments on a YouTube site, or Facebook.
The Tribunal has considered the evidence provided by the Applicant in support of his claim to fear serious or significant harm on return to Indonesia as an atheist, an LGBT rights activist or for any other reason. The Tribunal finds the Applicant’s claims were vague and general in their terms and that they lacked credibility. There was little evidence provided to establish that the Applicant has a genuine fear of harm on return to Indonesia or that if the Applicant has such a fear it was well-founded. There is no evidence the Applicant has ever suffered harm or persecution in the past when he was living in the Indonesia. There is no current evidence before the Tribunal that anyone in Indonesia is currently seeking to harm or threaten the Applicant.
The evidence does not establish that there is a real chance that the Applicant will suffer serious harm for a convention related reason on his return to Indonesia or that he faces a real chance of significant harm for these or any other reasons such as may enliven Australia’s non-refoulement obligations, including any claim for complementary protection.
There is no evidence before the Tribunal that it would not be open to the Applicant to make a protection visa application and if he chooses to do so, to provide further evidence which may satisfy a different decision-maker that a protection obligation is owed to him. In the event that such a determination is made on evidence not currently available to the Tribunal, it is possible that a non-refoulement obligation may arise. However, the Tribunal is not satisfied that there is sufficient evidence to make such a finding on this application.
On the basis of the evidence before it, the Tribunal finds that the issue of non-refoulement obligations does not arise with respect to the Applicant’s return to Indonesia and the Tribunal places no weight on this consideration.
Strength, nature and duration of ties
Paragraph 10.2(1) of Direction no. 79 provides:
(1)Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has been ordinarily resident in Australia since May 1997 when he was 23 years old. He commenced offending some five years later, in March 2002 at the age of around 28.
As noted above, there have been several periods where the Applicant’s offending ceased or slowed including between May 2003 and January 2010 and then again between January 2010 and December 2016. His last conviction was in June 2019 for offences which occurred in January 2019. The last time he offended was in April 2019.
The Applicant has made some positive contributions to the Australian community through being employed and self-employed as a tattoo artist during his time in Australia, and as a promoter and tour organiser of heavy metal bands from Indonesia.
The Applicant provided a number of character references from friends and work colleagues who have known him for a number of years.[175] Those character witnesses, two of whom testified at the hearing, attest to the Applicant’s work ethic and character. The Tribunal places weight on the support of the witnesses for the Applicant remaining in Australia. The Tribunal notes that the two witnesses who gave evidence at the hearing live in other parts of Australia and as such have limited in-person contact with the Applicant. One of the witnesses, Mrs M [redacted for publication], met the Applicant when he was living in Bali. This may make it possible for some of the Applicant’s friends to visit him in Bali should he return there. Notwithstanding this the Tribunal accepts that if the Applicant returns to Indonesia his friends will suffer the loss of regular contact with him as he will of them. This will cause them some hardship and emotional distress.
The Tribunal accepts on the basis of the evidence that the Applicant has made a cultural and economic contribution to the community working as a tattoo artist and that he has been involved in the promotion of cross cultural exchange between Indonesia and Australia through heavy metal music.[176]
Three of the Applicant’s children are in Australia. Two are minors. His mother, siblings and extended family are in Indonesia. One of his adult sons is also in Indonesia. As noted above, the Applicant does not currently have contact with his children, however he is seeking contact through the Family Court.
The Applicant indicated he has had limited contact with his now adult son in Australia who lives in another area of the state. He said his son was born after he and his former wife had divorced and he did not really know him.[177] He reconnected with him ‘a couple of months ago’ and they went camping for a week but he has not seen him since due to the fact that he lives very far away.[178]
There is no evidence before the Tribunal about the effect cancellation of the visa would have on the Applicant’s children in Australia. As noted above, the Tribunal regards that the Applicant’s removal would have a negative impact on his younger children who would likely be denied in-person contact with him for at least some time. The Tribunal also accepts while the Applicant has limited contact with his older Australian son, living in separate countries would have a detrimental effect on their relationship and cause them both hardship. However, as the Applicant’s son is an adult it would be open to him to maintain contact with his father and to visit him in Indonesia, particularly were the Applicant to return to Bali where he lived for a significant number of years prior to coming to Australia.
The Tribunal regards that the length of time that the Applicant has spent in Australia is a factor to be weighed in his favour in consideration of the cancellation of his visa.
On balance and based on the above discussion, the Tribunal finds that the Applicant’s ties to the Australian community are strong in terms of the length of time he has been in Australia, the establishment of his professional practice as a tattoo artist here and the fact that most of his children reside here in Australia. Consequently, this consideration weighs against exercising the discretion to cancel the Applicant’s visa.
Impact on Australian business interests
There is no evidence before the Tribunal that the cancellation of the Applicant’s visa will have a relevant impact on Australian business interests (paragraph 10.3(1) of Direction no. 79).
The Applicant stated that he was operating as a self-employed tattoo artist and would resume this and ‘a new business [the Applicant] just started’ if released from detention.[179] While the Tribunal accepts the Applicant has been self-employed as a tattoo artist, there was no evidence before the Tribunal as to the nature of the new business and no evidence that his visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Accordingly, the Tribunal does not place any weight on this consideration.
Impact on victims
Under the heading ‘Impact on victims’, paragraph 10.4(1) of Direction no. 79 provides for the consideration of the:
Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There was no evidence before the Tribunal from the victims of the Applicant’s offending, including the Applicant’s former wife and former partner, regarding the impact of a decision not to cancel the Applicant’s visa on them.
As the victims’ circumstances and views are unknown to the Tribunal, the Tribunal finds this consideration is neutral.
Extent of impediments if removed
Paragraph 10.5(1) of Direction no. 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant submitted that he would face significant impediments to return for the following reasons:
·he had no support network in Indonesia; and
·his children are Australian and he regards Australia as home. Half his life has been in Australia.
At the hearing, he denied he was familiar with Indonesia when this was put to him by the Respondent.[180]
The Respondent submitted that the Applicant would be in a position to establish himself in Indonesia and obtain work as a tattoo artist there. The Respondent submitted that the Applicant had returned to Indonesia 24 times since coming to Australia and remained familiar with the country. While the Applicant may face some challenges, these potential challenges are not insurmountable. However, the Respondent conceded that the consideration may weigh in favour of exercising the discretion to not cancel the visa but is outweighed by other considerations.[181]
The Tribunal accepts that the Applicant has been in Australia for a significant period of his adult life and regards himself as Australian. However, the Applicant has travelled back to Indonesia repeatedly, including on his own evidence to manage tours of Indonesian heavy metal bands to and from Indonesia. As he claims to have undertaken this work over a number of years, it is reasonable to conclude he is familiar with Indonesian culture, business practices and the professional music scene in which he was involved.[182] Further the Tribunal regards that his skills as a tattoo artist would be transferrable to Indonesia.
The Tribunal notes that the Applicant’s first language is Bahasa Indonesia and he would not face any language barriers on return to Indonesia.
The Tribunal notes that the Applicant also gave evidence that he has extended family in various areas of Indonesia including his eldest son.[183] He is the youngest of eight children and his siblings remain in Indonesia. He testified that he is in regular touch with them and has visited them on return trips. While he later said he is not close to his family since his parents have both died, the Tribunal considers that the Applicant would have family support on return to Indonesia to assist him to resettle there.
There is evidence the Applicant has suffered from depression in the past and has some history of drug use.[184] There is no other evidence before the Tribunal that the Applicant has any particular health issues which may cause an impediment to his removal and no evidence that the Applicant would not have access to health services available to Indonesian citizens generally.
The Tribunal accepts that there would be a period of adjustment for the Applicant in finding accommodation, a source of income and to develop new social networks. In this regard, the Tribunal notes the Applicant is skilled as a tattoo artist and has experience working in the Indonesian music industry which would be likely to give him a capacity to earn an income in Indonesia. However, the Tribunal accepts that this process may take some time and that this may cause the Applicant some hardship as a result.
The Tribunal regards that the primary hardship for the Applicant on return to Indonesia would be separation from his children. The Tribunal accepts that the Applicant will likely suffer emotional hardship as a result of such separation, notwithstanding his current separation from his children while in Australia. In this regard the Tribunal notes that the Applicant testified that he had prior counselling in prison for depression and there was information in police reports that he had threatened self-harm during the breakdown of his relationship.[185] This raises the possibility that the Applicant’s mental health may be adversely affected by return to Indonesia and potentially prolonged separation from his children.
As noted above, the Applicant raised claims he would suffer harm from Islamic fundamentalists or Indonesian authorities because he is an atheist and because he posted a video online in 2016 which supported LGBT rights in Indonesia. The Tribunal does not accept those claims to be credible and as such does not accept the Applicant will face serious or significant harm on return to Indonesia on that basis. However, the Tribunal accepts that the Applicant regards the influence of Islamic fundamentalism in Indonesia to be at odds with his own beliefs and as such accepts that this may present him with some challenges resettling into Indonesian society though the Tribunal notes that country information suggests those challenges may be less in Bali where he previously resided and where the influence of Islamic extremists has less impact.
Oral submissions were made at the hearing regarding the impact of the COVID-19 pandemic on this application, following a request from the Tribunal to do so prior to the hearing. If the Tribunal affirms the Reviewable Decision, the Respondent conceded that it is unlikely that the Applicant’s removal to Indonesia will be reasonably practicable (as required under s 198 of the Migration Act) for the immediately foreseeable future during the COVID-19 pandemic. He will therefore be detained in immigration detention for an uncertain timeframe.
The Tribunal accepts that if it affirms the Reviewable Decision, it is likely that the Applicant will face an additional period of detention before it will be reasonably practicable for him to be removed to Indonesia. However, to quote Member Eteuati in FRVT (at [299]) ‘[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides’.[186]
The Tribunal finds the Applicant has a level of familiarity with Indonesia which would assist in his relocation and reintegration there. He also has access to family support in that country and prospects for employment in a skilled trade or business enterprise. However, the Tribunal accepts he would face social, economic and emotional hardship resettling in Indonesia and that his mental health may suffer as a result. The Tribunal also accepts that the Applicant may face a prolonged period in detention due to COVID-19 travel restrictions. On balance, having regard to all the circumstances of the Applicant, the Tribunal considers that the extent of impediments to the Applicant if removed weighs against exercising the discretion to cancel the Applicant’s visa.
CONCLUSION
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has considered whether to exercise its discretion to remit or set aside the decision to cancel the Applicant’s visa under s 501(2) of the Migration Act, having regard to the primary and other considerations in Direction no. 79.
The Tribunal has found that the first primary consideration, being the protection of the Australian community weigh against the Applicant, as does the third primary consideration, being the expectations of the Australian community.[187] However, the Tribunal has also found that while some of the Applicant’s historical offences are serious, the majority of his recent offending is less serious. The Tribunal has also found that while there could be significant harm to the community if his serious offences were repeated, there is only a low risk he will reoffend in a serious manner.
In the Tribunal’s opinion these primary considerations are outweighed by the primary consideration of the best interests of the Applicant’s minor children in Australia which the Tribunal has found weigh in favour of the Applicant.[188] The other considerations of the strength, nature and duration of the Applicant’s ties to Australia and the extent of the impediments if removed to Indonesia also weigh in favour of the non-cancellation of the Applicant’s visa.
The impact of the cancellation of the Applicant’s visa on Australian business interests and victims are neutral considerations on the evidence before the Tribunal with respect to the Applicant’s case.
Further, the Tribunal does not regard that there is sufficient evidence before it to support a conclusion that Australia’s non-refoulement obligations would be engaged by the Applicant’s potential return to Indonesia. Accordingly, the Tribunal places no weight on this consideration.
Having regard to the evidence before it the Tribunal considers that the primary considerations of the best interests of the Applicant’s children and the other relevant considerations of the strength, nature and duration of the Applicant’s ties to Australia and the impediments if he is removed to Indonesia outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community.
On balance, and having regard to all of the primary considerations and the other considerations in Direction no. 79, the Tribunal is of the view that the correct and preferable decision is that the Applicant’s visa should not be cancelled.
DECISION
The Reviewable Decision dated 16 January 2020 is set aside and the Tribunal makes a decision in substitution that the discretion should not be exercised to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth).
I certify that the preceding 324 (three hundred and twenty -four) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
........[sgd]................................................................
Associate
Dated: 21 April 2020
Date of hearing: 26 February 2020 and 3,8 and 15 April 2020 Applicant: By videoconference and phone Representative for the Respondent: Mr Arran Gerrard Counsel for the Respondent: Australian Government Solicitor [1] Exhibit R6, SG2, pages 331-334.
[2] Transcript, 8 April 2020, page 64.
[3] Transcript, 8 April 2020, page 64.
[4] Exhibit R5, G12, page 50.
[5] Exhibit R5, G16, page 76.
[6] Exhibit R5, G17, pages 77-78.
[7] Exhibit R5, G3, pages 10-26.
[8] Exhibit R5, G23, page 123.
[9] See Exhibit A8.
[10] This document was referred to at the final day hearing as ‘Exhibit A10’ in error and is corrected in this decision to be Exhibit A15.
[11] Exhibit R5, G23, page 123.
[12] Exhibit R5, G25, page 125; Exhibit A2.
[13] Exhibit R5, G2-G22, G24, page 124.
[14] Exhibit A2.
[15] Exhibit R5, G26, page 126; Exhibit A3.
[16] Exhibit R5, G1, pages 1-5; Exhibit A4.
[17] Exhibit R1, para 27, pages 5-6.
[18] Exhibit R1, para 28, page 6.
[19] Exhibit R5, G23, page 123.
[20] Exhibit R5, G24, page 124; R1, page 1, para 4.
[21] Transcript, 26 February 2020, pages 10-11.
[22] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271, at 278[36].
[23] Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13].
[24] See s 36(2) of the Acts Interpretation Act 1901 (Cth).
[25] See Russell v Minister for Home Affairs [2019] FCAFC 110; Scott and Minister for Immigration and Citizenship [2012] AATA 400; Ngapera and Minister for Immigration and Citizenship [2012] AATA 24; Wilde and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 840; Otineru and Minister for Immigration and Citizenship [2007] AATA 1939.
[26] Explanatory Memorandum, Tribunals Amalgamation Bill 2014 (Cth) cl 375.
[27] The Tribunal considers that this approach is also consistent to the way the courts have approached other provisions of the Migration Act pertaining to s 501 applications (see the discussion of the High Court approach as expressed in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) at [72]-[77] and the Federal Court in Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710 at [80]).
[28] The video component was lost part-way through the hearing and hearing continued with the Respondent on an audio link only.
[29] Exhibit 15.
[30] Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509, at 518 (Mordechai), where the Honourable Justice Bennett considered the operation of the two-day rule and held that the date of the hearing ‘is the date from which compliance is measured, it is thereby not included as a ‘business day’ pursuant to s 36(1) of the Acts Interpretation Act [1901 (Cth)]’. Her Honour found that two clear days prior to the hearing were required. Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378, at 389-390.
[31] Uelese at 223.
[32] Ibid.
[33] Ibid.
[34] Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482 (Jagroop), at 500.
[35] Uelese at 219-220.
[36] Uelese at 219-220.
[37] Exhibit R5, G6, pages 27-28.
[38] Exhibit R6, SG2, pages 261-263.
[39] Offence not contained within Exhibit R5, G6, listed in Exhibit R6, SG2, page 261.
[40] Offence not contained within Exhibit R5, G6, listed in Exhibit R6, SG2, page 261.
[41] Offence not contained within Exhibit R5, G6, listed in Exhibit R6, SG2, page 262.
[42] Exhibit R6, SG2, page 262.
[43] Exhibit R5, G7 page 31.
[44] Exhibit, G7, page 32.
[45] See Exhibit R6, SG2 319 and 329. The Applicant’s most recent offence appears to be for breaching reporting obligations.
[46] Exhibit R5, G7, pages 30-34.
[47] Exhibit R5, G7, page 31.
[48] Exhibit R5, G7, page 31.
[49] Exhibit R5, G7, page 31.
[50] Exhibit R6, SG2, page 296.
[51] Transcript, 8 April 2020, page 41; Exhibit R5, G6, page 28.
[52] Exhibit R6, SG2, pages 295-299.
[53] Transcript, 8 April 2020, page 39 at [15].
[54] Exhibit R6, SG2, page 293.
[55] Exhibit R6, SG2, page 293.
[56] Transcript, 8 April 2020, page 42.
[57] Exhibit R5, G17, page 77.
[58] Exhibit R6, SG2, pages 278-281, 285.
[59] Exhibit R6, SG2, page 284.
[60] Transcript, 8 April 2020, pages 50-53; Exhibit A9.
[61] Exhibit R5, G6, page 28.
[62] Exhibit R6, SG2, page 286.
[63] Transcript, 8 April 2020, page 49.
[64] Exhibit R5, G6, page 28; Exhibit R6, SG2, pages 261-263.
[65] Exhibit R5, SG2, page 261.
[66] Transcript, 8 April 2020, pages 55-57.
[67] Transcript, 8 April 2020, page 58.
[68] Upheld on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
[69] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250; Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
[70] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
[71]
Her Honour was considering an earlier version of the Act, however as s 200 was a precursor to
s 501 her comments are equally applicable to the current application.[72] See also the Tribunal’s review of the case law in Gage and Minister for Home Affairs [2020] AATA 326.
[73] Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580, at 588[27] (Sundberg, Jacobson and Bennett JJ).
[74] Exhibit R5, G17-G19, pages 37-83.
[75] Exhibits A1, A9, A10, A11, A12, A13.
[76] Exhibit A12; Transcript pages 67-72.
[77] Exhibit A4; Exhibit R5, G1, pages 1-5.
[78] Exhibit R4, Transcript, 9 April 2020, pages 83-97.
[79] Exhibit R7.
[80] Exhibit A4.
[81] Direction no. 79, para 9.1.1(1)(b).
[82] Exhibit R5, G7, page 31.
[83] Exhibit R5, G7, page 33.
[84] Direction no. 79, paras 9.1.1(1)(a) and (c).
[85] Exhibit R5, G17, page 79.
[86] Direction no. 79, para 9.1.1(1)(c). The Tribunal notes that while children are not listed as vulnerable members of the community in 9.1.1(1)(c) the list contained in the paragraph is not exhaustive and in the Tribunal’s view, children are clearly vulnerable members of the community. See the approach of Senior Member Dr Evans-Bonner in Di Stefano and Minister for Home Affairs [2019] AATA 677 at [56].
[87] Direction no. 79, para 9.1.1(1)(b).
[88] Direction no. 79, para 9.1.1(g).
[89] Exhibit R6, SG2, page 261.
[90] Direction no. 79, para 9.1.1(1)(g).
[91] Direction no. 79, paras 9.1.1(1)(d), and (k).
[92] Exhibit R5, G15, pages 59-75.
[93] Exhibit R5, G15, pages 59-75; Direction no. 79, para 9.1.1(1)(i).
[94] Transcript, 8 April 2020, pages 37-38.
[95] Direction no. 79, para 9.1.1(1)(i).
[96] Direction no. 79, para 9.1.1(1)(e).
[97] Direction no. 79, para 9.1.1(1)(f).
[98] Direction no. 79, para 9.1.1(1)(h).
[99] Direction no. 79, para 9.1.1(1)(j).
[100] Exhibit A4.
[101] Exhibit A9.
[102] Exhibit R5, G17, pages 77-78.
[103] Exhibit R5, para [34].
[104] Exhibit R4, citing Direction no. 79, paras 6.3(3) and (4) and 9.1.2(1).
[105] Direction no. 79, para 9.1.2(2)(a).
[106] Direction no. 79, para 9.1.2(1).
[107] Direction no. 79, para 9.1.2(2)(b).
[108] Exhibit R5, G7, page 32.
[109] Exhibit R6, SG1, pages 180, 184, 188.
[110] Exhibit R6, SG1, page 188.
[111] Exhibit R6, SG1, page 188.
[112] Exhibit R6, SG2, pages 319 and 329.
[113] Exhibit R6, SG2, page 319.
[114] Exhibit R6, SG2, page 261.
[115] Transcript, 8 April 2020, page 58.
[116] There is some limited medical evidence that he suffered from depression. Exhibit A6, SG1, pages 235-253.
[117] Exhibits A5, A6, A7 and A8; Transcript, pages 62-64 and 79-82. The Tribunal also notes the willingness of Mr C [redacted for publication] to give evidence.
[118] Exhibit R6, SG1, pages 240, 249, 250.
[119] Exhibit R4, page 9; Transcript, 8 April 2020, page 88.
[120] Exhibit R6, SG2, pages 331-334; Transcript, 8 April 2020, page 53-55.
[121] Transcript, 8 April 2020, page 54-55.
[122] Transcript, 8 April 2020, page 66.
[123] Exhibit A13 and Exhibit AR5, G19, pages 80 – 82
[124] Transcript, 8 April 2020, page 66.
[125] Transcript, 8 April 2020, page 67.
[126] Direction no. 79, para 9.2(4)(a).
[127] Transcript, 8 April 2020, pages 64-74.
[128] Exhibit R6, SG1, pages 129-131.
[129] Transcript, 8 April 2020, page 82.
[130] Transcript, 8 April 2020, page 55.
[131] See conditions of the FVRO at Exhibit R6, SG2, pages 331-334.
[132] Transcript, 8 April 2020, page 96.
[133] Direction no. 79, para 9.2(4)(e).
[134] Direction no. 79, para 9.2(4)(c).
[135] Exhibit R6, SG2, page 310, 325; Exhibit R5, G10, page 44 indicates ‘No. times children exposed to FV- 6’.
[136] Direction no. 79, para 9.2(4)(d).
[137] Direction no. 79, para 9.2(4)(g).
[138] Direction no. 79, para 9.2(4)(h).
[139] Exhibit A13.
[140] Exhibit A13.
[141] Direction no. 79, para 9.2(4)(f).
[142] Direction no. 79, para 9.2(4)(b).
[143] Direction no. 79, para 9.2(4)(f).
[144] Direction no. 79, para 9.2(4)(b).
[145] Exhibit R4, pages 9-10.
[146] While the case of FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR (FC)) concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction no. 79. The Tribunal considers that the Court’s consideration of the issue of ‘community expectations’ is directly applicable to paras 6, 8 and 9.3 of Direction No. 65 which are applicable to applications under Direction no. 79. Further, although the Justices in FYBR (FC) were considering the provisions with respect to visa refusal their comments are, in the Tribunal’s view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).
[147] Similarly, the Full Court was considering an earlier version of the direction (Direction no. 65) and was considering paragraph 13.3(1) which is in identical terms to the provision in paragraph 9.3 Accordingly the Tribunal regards the Court’s consideration as applicable to the considerations arising in this case.
[148] FYBR (FC) at [61], per Charlesworth J; see also Stewart J at [89].
[149] FYBR (FC) Charlesworth J at [73]-[74]; Stewart J at [93] and [103].
[150] See FYBR (FC) Charlesworth J at [74], Stewart J at [91]-[93].
[151] See for example Direction no. 79 paras 9.1.1(1)(a), (b) and (c).
[152] Exhibit A12.
[153] Paragraph 10.1(3) of Direction no. 79.
[154] Transcript, 8 April 2020, page 67-68.
[155] See the relevant discussion in Uelese. While this discussion was obiter dicta, the Court went to significant lengths to record its understanding of the correct application of the law in this regard, given the Court’s view that it was ‘desirable to make it clear that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment in order to ensure the review is conducted thoroughly and fairly’ at 223 [70].
[156] Jargroop, Uelese.
[157] Transcript, 15 April 2020, pages 111-112.
[158] Uelese, 220 [59].
[159] Exhibits R8 and R9.
[160] Minister for Home Affairs v Omar (2019) 373 ALR 569.
[161] Ibid 586-7.
[162] Transcript, 8 April 2020, pages 74-75.
[163] Transcript, 8 April 2020, page 72.
[164] Transcript, 8 April 2020, pages 70-71,
[165] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–70; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v Minister for Immigration and Indigenous Affairs [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Although these cases concern protection visa applications the Tribunal considers the principles espoused to be applicable to the present considerations. See also Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68].
[166]
Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Selvadurai v Minister for Immigration and Ethnic Affairs (1994)
34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.[167] See Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198.
[168] Exhibit R5, G11, pages 47-49; see also Exhibit R7, Respondent’s submissions on non-refoulement issues.
[169] Exhibit A15.
[170] Exhibit R8.
[171] Exhibit R8, pages 31-32.
[172] Exhibit R8, page 33.
[173] Exhibit R8, page 23.
[174] Exhibit R9.
[175] Exhibits A5, A6, A7, A8, A14.
[176] Exhibit A9, A10.
[177] Transcript, 8 April 2020, page 76-77.
[178] Transcript, 8 April 2020, page 76-77.
[179] Exhibit A9.
[180] Transcript, 8 April 2020, page 67.
[181] Exhibit R4, pages 11-12.
[182] See also Exhibit R9.
[183] Transcript, 8 April 2020, page 36.
[184] Exhibit R6, SG1, page 235-240.
[185] Exhibit R6, SG2, page 321; SG1, page 250.
[186] FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294.
[187] Paragraph 9.1 of Direction no. 79; Paragraph 9.3 of Direction no. 79.
[188] Paragraph 9.2 of Direction no. 79.
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