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

[2023] AATA 3813

DFHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3813 (22 November 2023)

Division:                  GENERAL DIVISION

File Number:          2023/6491

Re:DFHB

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:22 November 2023

Place:Sydney

The reviewable decision made on 30 August 2023 by a delegate of the Respondent Minister to refuse to grant the Applicant a Bridging E (Class WE) visa pursuant to section 501(1) of the Migration Act 1958 (Cth) is set aside and in substitution it is decided not to exercise the discretion conferred by subsection 501(1) to refuse to grant a visa to the Applicant.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – refusal to grant Bridging E (Class WE) visa exercised under s 501(1) because applicant did not pass the character test – whether the discretion to refuse to grant the visa should be exercised – whether the delegate’s decision is reviewable – whether the applicant passes the character test – Ministerial direction no.99 – protection of the Australian community – family violence – strength, nature, duration of ties to Australia – expectations of the Australian community – legal consequences of the decision – impact of NZYQ decision – extent of impediments if removed – costs for the Commonwealth, State and Territory governments – reviewable decision set aside

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW)

Migration Act 1958 (Cth)

Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)

Migration Regulations1994 (Cth)

CASES

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154

Onwong’a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4631

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1

Yilmaz v Minister in Immigration and Multicultural Affairs (2000) 100 FCR 495

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

22 November 2023

Introduction

1. The Applicant is a citizen of Iran who was born in 1979. He entered Australia on 11 June 2012 as an unauthorised maritime arrival. He was released into the community from immigration detention on 10 September 2014.

2. The question to decide in this case is whether to affirm or set aside the decision made on 30 August 2023 by a delegate of the Respondent Minister to refuse to grant the Applicant a Bridging E (Class WE) visa (the visa) pursuant to section 501(1) of the Migration Act 1958 (Cth) (the Act). As a consequence of that decision, the Applicant’s undecided application for a Resolution of Status visa was taken to have been refused (section 501F(2) of the Act).

3. He had applied for the visa on 8 June 2023 after applying for a Resolution of Status visa on 2 June 2023.

   The issues

4. The following issues must be decided:

   (a)Is the delegate’s decision reviewable? 

   (b)If so, does the Applicant pass the character test prescribed in sections 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth)? That is, does he have a substantial criminal record because has been sentenced to a term of imprisonment of 12 months or more?

   (c)If the Applicant does not pass the character test, should the discretion conferred by section 501(1) of the Act be exercised to refuse to grant the visa?

   Is the delegate’s decision reviewable?

5. This issue was raised inferentially by the Applicant’s Statement of Facts, Issues and Contentions at [23]:

   The Applicant also contends that the delegate made the decision to refuse his visa application prior to the 28-day deadline commencing from 16 August 2023, the date the Department sent him a request for further information under s56.

6. The Applicant was legally represented until 6 November 2023, the day before the hearing, when the Tribunal received an email advising that the legal representative had withdrawn.   Consequently, the Tribunal did not have any assistance beyond the words of the contention, to understand what was meant.

7. The contention needs to be considered in the relevant factual context.  

8. On 29 June 2023, the National Character Consideration Centre of the Department of Home Affairs (the NCCC and the Department respectively) issued to the Applicant a notice of intention to consider refusal of his visa application (NOICR). His response was due within 28 days of 29 June 2023.

9. On 10 July 2023 the NCCC requested from the Applicant further information regarding possible visa refusal. His response was due within 28 days of 10 July 2023.

10. On 10 August 2023, more than 28 days after the NOICR and the letter of 10 July 2023 had been given to the Applicant, an officer of the NCCC wrote to the Applicant’s lawyer advising that the time to provide a response had passed and asking whether the Applicant had a response to provide. The Applicant’s lawyer replied on the same day asking the Department not to make a decision until 17 August 2023. On the same day, the NCCC officer advised that an extension until 17 August 2023 had been granted to respond to the NOICR and the letter of 10 July 2023. No response to either letter was received by 17 August 2023.

11. On 16 August 2023, an officer of the Humanitarian Program Branch of the Department sent an email to the Applicant’s lawyer asking for information about a pending court appearance on 1 August 2023 for two offences. The information was to be provided within 28 days.

12. The refusal decision made on 30 August 2023 does not refer to the 1 August 2023 court appearances or the outstanding charges. There is no suggestion that the offences dealt with in court on 1 August 2023 were taken into account by the primary decision-maker.

13. The first time the Applicant provided any information about the court appearance on 1 August 2023 was in a Supplementary Submission to the Tribunal dated 20 October 2023.

14. Two possible arguments may arise from the Applicant’s contention. The first is that there was a denial of procedural fairness in making the reviewable decision because it was made before the time had elapsed to provide information about the court appearance on 1 August 2023. 

15. As the offences dealt with on that day were not referred to or considered by the delegate, that contention is not made out.

16. The second possible argument is that the Applicant’s lawyer had understood the email of 16 August 2023 to have extended the time within which to respond to the NOICC and the letter of 10 July 2023.

17. The email does not state that. The request for information is confined to the court appearance on 1 August 2023. It was sent by a different section of the Department. It is relevant that the Applicant had applied for a Resolution of Status visa as well as the visa. That matter was unresolved until the refusal decision was made on 30 August 2023 which had the effect that the Resolution of Status visa was refused (section 501F(2) of the Act).

18. The Applicant’s lawyer has not claimed explicitly that he had been so misled or provided a statement to that effect.

19. A claim of denial of procedural fairness has not been made out on that basis.

20. In any event, if, contrary to my conclusions there was a denial of procedural fairness, the relevant authorities establish that the decision is reviewable and the claimed denial of procedural fairness is of the kind that can be ‘cured’ before the Tribunal:  see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338; Yilmaz v Minister in Immigration and Multicultural Affairs (2000) 100 FCR 495; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314, and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1.

    Does the Applicant pass the character test?

21. The delegate found that the Applicant did not pass the character test because he was sentenced to a 16 month intensive correction order (ICO) (aggregate) on 7 October 2022 for five counts of Contravene prohibition/restriction in AVO (Domestic), one Stalk/intimidate intend fear physical etc harm (domestic)-T2 and one Common assault (DV).

22. The Applicant contended that he does pass the character test because:

    (a)the ICO did not involve a custodial component; and

    (b)his other sentence to imprisonment for 27 days does not satisfy the 12 months or more criterion in section 501(7)(c) of the Act.

23. I accept the second contention but not the first for the following reasons.

24. Section 501(12) of the Act sets out the following definitions:

    imprisonment includes any form of punitive detention in a facility or institution.

    sentence includes any form of determination of the punishment for an offence.

25. The ICO was imposed pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act), as it was at the time of sentencing. Part 2 is titled Penalties that may be imposed.  Division 2 of that Part is titled Custodial sentences and provides for Penalties of imprisonment (Section 5), Compulsory drug treatment detention (section 5A) and ICOs (section 7). Division 3 is titled Non-custodial alternatives.

26. Section 5(5) of the CSP Act provides that Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.

27. Section 7 of Division 2 is titled Intensive correction orders. It provides:

    (1)A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

    (2)If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.

    (3)This section does not apply to an offender who is under the age of 18 years.

    (4)This section is subject to the provisions of Part 5.

28. Part 4 of the CSP Act is titled Sentencing procedures for imprisonment and Part 5 of the CSP Act is titled Sentencing procedures for intensive correction orders.

29. Clearly, the Applicant has been sentenced to a term of imprisonment for 16 months. An ICO is a way of serving that term of imprisonment. That conclusion is supported by the consideration of section 501 of the Act in respect of a suspended sentence in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33.[1] Brown was applied by the Tribunal in Onwong’a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4631 to find that an ICO is relevantly a term of imprisonment for the purposes of section 501(7)(c) of the Act.

    Should the discretion conferred by section 501(1) of the Act be exercised to refuse to grant the visa?

    [1] At [1], [7] and [114].

30. Decision-makers performing functions or exercising powers under section 501 of the Act are guided by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).

31. Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to refuse a visa under section 501(1) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in making its decision.

32. There are five primary considerations.  Four arise for consideration in this case:

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

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

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

    (d)the expectations of the Australian community.

33. The decision-maker must also take into account “other considerations” including four set out in Direction 99, where they are relevant. Two arise for consideration in this case:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

34. Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[2]

    Primary considerations

    [2] Paragraph 7(1) and (2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].

    Protection of the Australian community

35. There are two considerations in relation to the protection of the Australian community:

    (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.

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

36. The Applicant’s first criminal offence was Shoplifting-T2 committed in 2018. He was found guilty but no conviction was entered and the charge was dismissed, pursuant to section 10 of the CSP Act. I give no weight to this offence.

37. His criminal offending that is the substantive subject of this decision began in mid-2020 during the COVID-19 pandemic. The Applicant was in a relationship with a woman from about 2016. They bought a business together in 2018. Based on the Applicant’s letter of 9 March 2021 and the police fact sheets which recorded that he was living with his then partner in June and July 2020, the intimate personal relationship ended sometime after his offending in June and July 2020. His partner/former partner was the victim of all offences except the most recent one. Her boyfriend was the victim of that offence. The Applicant’s offending was committed in the context of the on-going business relationship.

38. The following summaries of the incidents giving rise to the charges against the Applicant are based on police fact sheets. They are not statements of agreed facts. No sentencing remarks were in evidence. The Tribunal does not know to what extent if any particular facts were disputed. The seriousness of the offending is reflected in the sentences imposed.

39. It is unnecessary to set out the history of the Apprehended Violence Orders (AVO) issued and in force because that they were in force at the time of the offending is apparent from the offence of which the Applicant was convicted.

40. The Applicant’s first conviction was on 12 April 2021 for Common assault (DV)-T2. He was sentenced to an 18 month Community Correction Order (CCO) commencing 12 April 2021 concluding 11 October 2022. The Applicant had been charged with two offences. Both occurred at the business. The second offence, of which he was not convicted, was Assault occasioning actual bodily harm (dv) T2.

41. The victim had called the police on 20 July 2020 and reported incidents that had occurred on that day and on 1 June 2020. The victim gave accounts of the two incidents which involved verbal abuse and physical injury. The Applicant was arrested on 21 July 2020 at the business premises and later released on bail. He declined to be interviewed. He was issued with a provisional apprehended domestic violence order.   

42. It is not clear which incident gave rise to the conviction or the facts relied upon by the sentencing magistrate. The charge for which the conviction was entered is the less serious charge of the two. However, the length of the CCO demonstrates that the sentencing magistrate regarded the offence as serious.

43. The Applicant was next before the court on 7 October 2022 when he was convicted of the five Contravene prohibition/restriction in AVO (Domestic), one Stalk/intimidate intend fear physical etc harm (domestic)-T2 and one Common assault (DV)-T2 for which he was sentenced to the 16 month ICO commencing 7 October 2022 and ending 6 February 2024.   

44. Those convictions were for offences that arose during the following incidents. The Tribunal does not know the facts the sentencing magistrate found. However, the sentence indicates that they were considered to be serious offences.  

45. One Common assault (DV)-T2 and one Contravene prohibition/restriction in AVO (domestic) resulted from an incident on 15 September 2021 at their business premises when the Applicant arrived while the victim was working. This summary is based mainly on the victim’s account to the police. They argued because he was not wearing a face mask. She began recording the argument. He grabbed her telephone and after trying to bend it in half, threw it on the ground. It was in a heavy duty case and was not damaged. He grabbed a leaf blower and hit her in the stomach with the tube end causing pain but no visible injuries. He grabbed the victim’s telephone again, threw it on the roof of the business premises and left. She retrieved it. The victim believed he was capable of seriously hurting her and her workplace was unsafe. The police applied for an AVO with stricter conditions.

46. On 13 March 2022 the Applicant had attended the business premises when the victim was present. They argued and he verbally abused her. She contacted police. Consequently, the Applicant was arrested and charged with Contravene Prohibition/restriction in AVO (domestic).  He declined to be interviewed.

47. There were incidents on 14 and 16 August 2022. Each resulted in a charge of Contravene prohibition/restriction in AVO (Domestic) and a charge of Stalk/intimidate intend fear physical etc harm (Domestic) T2 offences. Only one of the latter charges proceeded to conviction.  

48. According to the victim, the 14 August 2022 incident involved the Applicant telephoning the victim numerous times, and insulting her, calling her names and saying that she should have been killed. On 16 August 2022, the Applicant was at the business premises. The victim attended, having sent a text message to a mutual third party to let the Applicant know she was on her way. After she had parked and got out of her car, the Applicant walked past her and said I have a bad plan for you.  When arrested, he declined to make a statement.

49. On 17 August 2022 the Applicant was at the business premises. The victim attended, having sent a text message to a mutual third party advising she was on her way. When she arrived, she asked a colleague to ask the Applicant to leave. He declined. She attempted to leave to go to a nearby café to speak with a work colleague. He intercepted her, insulted her, and said Your worth doing time for, you dirty aussie bitch. He was charged with Contravene prohibition/restriction in Avo (domestic). 

50. The Applicant claimed that he did not attend the business after that incident and purchased another business.

51. On 9 May 2023, the Applicant was convicted of two Contravene Prohibition/restriction in AVO (Domestic) offences and sentenced to 6 months imprisonment commencing 27 April 2023 for each offence. On appeal on severity on 22 May 2023, the sentence was varied to 27 days commencing 27 April 2023, which resulted in the Applicant being released from custody on 23 May 2023 and taken to immigration detention where he remained at the time of the hearing. The varied sentence was, in effect, for time served. Clearly, the sentencing magistrate and the sentencing judge on appeal took very different views of the seriousness of the offences. That was in the context of the existing ICO.

1. The only other evidence about this offending is from the Applicant. He said that the incident occurred in March 2023 when his telephone call to the business to provide details of his new accountant was diverted to his former partner’s telephone. He claimed that this was in response to her demand to finalise a tax return. She answered and then hung up. On ANZAC Day 2023 police contacted him and he was then arrested and charged.  I infer that was on 27 April 2023.

2. On 1 August 2023, he was convicted of Common assault-T2 and sentenced to a 6 month CCO concluding on 31 January 2024. He had been charged with Assault occasioning actual bodily harm-T2 and Attempt stalk/intimidate intend fear of harm (Personal)-T2. The only evidence about the incident leading to the charges and the conviction for a lesser charge, was from the Applicant. His version of events suggests that it occurred on 17 August 2022.  He claims that after his encounter with his former partner described at [49], he left the business premises and went to a nearby café with a friend. His former partner and her new boyfriend arrived. The boyfriend grabbed the Applicant. The Applicant denied physically engaging with the boyfriend. Other people pulled them apart.  He claimed that that man had taken over the business without paying any money. The Applicant’s former partner and the man began a relationship after he came to purchase the business and the Applicant gave the man his former partner’s telephone number. 

3. The Applicant claims to have walked away from the business and to have received no payment for doing so. He started another similar business in December 2022 but that has also ended because of his ‘legal challenges’.

4. The evidence of the Applicant and his witnesses was that he had often been provoked by his partner’s actions and words, he accepted full responsibility for his actions and understands their consequences.

5. The Applicant has had the opportunity to give evidence about the incidents and put his case to the criminal court. To the extent that provocation was relevant to the offences, he has had the opportunity to give evidence about it. It is not for this Tribunal to go behind a criminal conviction and sentence. It must accept that the elements of the offence have been made out to the satisfaction of the presiding officer. The sentences imposed reflect the presiding officer’s assessment of the seriousness of the offence according to the criminal law and the evidence. The Tribunal’s consideration is pursuant to the Act, guided by Direction 99.

6. Apart for his last conviction for common assault on 1 August 2023, the Applicant’s convictions from 2020 to 2023 are for family violence as defined in Direction 99, including assault, threatening behaviour and repeated derogatory taunts, against his partner and then former partner. While the Applicant denied making some comments police had recorded, he accepted that he had made other derogatory comments.

7. Acts of family violence are considered very seriously by the Australian Government and the Australian community, regardless of whether there is a conviction for an offence or a sentence imposed.[3] 

   [3] Direction 99, 8.1.1(a).

8. In addition, the following aspects of his conduct are considered by the Australian Government and the Australian community to be serious: his offending increased in frequency, particularly in 2022, and the cumulative effect of his repeated offending.

   The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

9. The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This is not a case where the conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.

10. Should the Applicant engage in further criminal conduct, the nature of the harm to individuals would be the threat of or actual physical or psychological harm. I do not accept that the offending history indicates the possibility of death.

11. The evidence about the risk of the Applicant reoffending is limited. There is not information from courts such as sentencing remarks or pre-sentence assessments. The Respondent issued only one summons to Corrective Services NSW.  The Applicant did not respond to the opportunities to provide supporting material provided during the consideration of the visa refusal.  Statements from the Applicant, one of his brothers, his sister, a cousin, a friend, and his current partner were provided to the Tribunal. 

12. Given his offending history, some claims made in the Applicant’s Statement of Facts, Issues and Contentions are not supported by substantive evidence. For example, He has demonstrated a strong commitment to personal growth and has consistently shown qualities of empathy, responsibility, and a desire to make positive contributions to society.  He has a history of engaging in community activities …. Other claims are exaggerated.

13. The Applicant did not offend against his partner from 2016 until June/July 2020 during the COVID-19 pandemic when their personal intimate relationship was failing but they continued their two year business relationship. He finally walked away from the business after the August 2022 incidents. 

14. The Applicant’s SOFICs claimed that there had been a prolonged absence of contact with the Applicant’s former partner which:

    is a testament to his commitment to move forward positively and to disengage from the events that have clouded his life. His lack of interaction with (her) indicates his desire for a peaceful and non-confrontational future.

15. That is an exaggeration. According to the Applicant, he committed the last offence against his former partner in March 2023 when he telephoned her, which resulted in his arrest on ANZAC Day. I infer that he was held on remand until he appeared before a local court on 9 May 2023 when he was sentenced to six months imprisonment on each charge of Contravene Prohibition/restriction in AVO (Domestic). (His version of events does not explain why there were two charges.) He was released and taken into immigration detention on 23 May 2023 after a severity appeal heard on 22 May 2023 when the court effectively imposed a sentence of time served (27 days). Those offences were committed while he was the subject of an ICO. 

16. The Applicant is no longer in an intimate personal or business relationship with his former partner, having walked from the business and forgiven all interests in it.  It is unlikely that he will reoffend against her. However, I have to consider the likelihood that he will reoffend when he is another relationship in the future. He is currently in a relationship with another woman. There is no suggestion that he has committed family violence against his current partner.   

17. Between 4 and 9 September 2023, the Applicant undertook courses in anger management, healthy relationships, domestic violence and personality development. The Applicant’s application for review was lodged with the Tribunal on 4 September 2023. That is the only evidence that the Applicant had sought assistance to address his offending behaviours.

18. After doing those courses, the Applicant provided a statement dated 20 September 2023. The Applicant’s Statement of Facts, Issues and Contentions (SOFICS), prepared by his former legal representative, was filed on the same day and made the following assertions:  His former partner appeared to be attempting to deprive him of his interest in the business. It emphasised the importance of considering that the alleged incidents should be viewed as part of a broader pattern involving provocation, manipulation, and external influences.

19. In its Statement of Facts, Issues and Contentions (SOFICS) dated 4 October 2023, the Respondent referred to the Applicant’s statement of 20 September 2023 and correspondence from the Applicant dated 9 March 2021 to put the following contentions.

20. The Applicant denied the conduct of which he had been convicted or claimed to have been provoked. He also said that his former partner orchestrated events to falsely incriminate him with the intent of removing him from the business. He seems to have convinced those who gave evidence for him to similar effect.

21. In fairness to the Applicant, the letter dated 9 March 2021 was written before his first offences charged in July 2020 had been heard in court. The Applicant was legally represented and expected to be successful. The Applicant acknowledged that there had been a verbal argument. When he wrote the letter he was not subject to a AVO.

22. The Respondent’s contentions in relation to the Applicant’s statement of 20 September 2023 are almost correct. The Applicant wrote that his actions were often provoked by his former partner who appeared to be orchestrating events (emphasis added). That indicates that he acknowledged that there were incidents which were not provoked by her. He also stated that he accepted full responsibility for my actions and understand the consequences they have entailed.

23. In his statement dated 20 October 2023, the Applicant placed less blame on his partner. He acknowledged his past actions and accepted full responsibility for his mistakes for which there was no excuse. He deeply regretted the events that transpired in my personal and professional life.  He claimed to have learned valuable lessons and taken significant steps to self-improvement, including the courses he had completed, and was committed to ensure that such incidents did not recur. He emphasised that those events related to his involvement with his former partner. He expressed genuine remorse. 

24. During the hearing, the Applicant admitted that there were times when he found it difficult to control his anger in his dealings with his former partner. He said that he pleaded guilty to some of the offences.

25. The Applicant has the wholehearted support of his brother, his sister, his cousin, a friend, and his partner of one year. They all regard him very highly, consider that he faced challenging circumstances in his dealings with his former partner who was manipulative, and that he is a good person. I infer that most of the information about his relationship with his former partner came from the Applicant.

26. The Respondent submitted that the Applicant’s conduct was abhorrent victim blaming behaviour which substantially undermines any contention that the Applicant is rehabilitated and will not reoffend. There is some substance in the submission, however it fails to consider the particular circumstances of this case, that is, the failing of an intimate personal relationship and continuing business relationship in the context of COVID-19 after a four year personal relationship and two year business relationship when there was no offending.  There was no previous history offending during the two years the Applicant was in the community from 2014 to 2016.

27. It is unlikely that the Applicant will again face the circumstances he did from 2020 to 2023.  Having been sentenced to and served a short period of imprisonment, and consequently detained in immigration detention, he has learned a lesson. He has undertaken some courses, although he has not clearly demonstrated insight into his offending and how to deal with situations he finds provoking. However, I am cautious about drawing an inference that is adverse to the Applicant because the content of the SOFICS prepared by his previous legal representative suggests that close attention has not been paid to the guidance given in Direction 99 by the former legal representative and therefore by the Applicant. 

28. I am satisfied that his risk of reoffending against his former partner or another person is low.  

29. The protection of the Australian community weighs in favour of exercising the discretion to refuse the visa.

    Family violence committed by the non-citizen

30. The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in.

31. The Applicant’s history of family violence and the sentences imposed are set out in the previous section.

32. The frequency of the Applicant’s offending increased, particularly in August 2022. He walked away from the business after that and therefore walked away from having contact with his former partner. Based on the limited evidence available, his offending in March 2023 was by telephone, not in person. I accept that he did not intend to make that call to abuse his former partner but to take a step in finalising their business relationship, which resulted in an argument. 

33. The cumulative effect of his repeated acts of family violence is relevant to the seriousness of that offending.

34. I have addressed the Applicant’s rehabilitation with respect to the risk of his reoffending above. As there were no agreed facts or sentencing remarks in evidence, there was no evidence of the actual impact of the offending on the former partner and therefore the extent to which the Applicant understands that impact does not arise for consideration in this case.  

35. The consideration family violence committed by the Applicant weighs in favour of exercising the discretion to refuse the visa.

    The strength, nature and duration of ties to Australia

36. The Applicant was in the Australian community from 10 September 2014 to 27 April 2023.  He has strong ties with his brother, sister, cousin, friend, and current partner. It is not clear that any of them is an Australian citizen. His friend has been in Australia for 43 years. I am prepared to infer that she has a permanent right to remain in Australia indefinitely. His current partner’s bridging visa is due to expire on 6 December 2023. She may be granted another. She was recently refused a visitor visa as a secondary applicant. The visa status of his brother, sister and cousin is not apparent on the evidence.

37. The Applicant did not reside in Australia in his formative years. He was in the community from 2014 to 2023. He has contributed positively to the Australian community by running two businesses and employing people.

38. This consideration weighs against exercising the discretion to refuse the visa.

    Expectations of the Australian community

39. The Applicant has engaged repeatedly in very serious conduct in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[4] This expectation applies regardless of whether the Applicant poses a measureable risk of causing physical harm to the Australian community.[5]

    [4] Direction 99, paragraph 8.5(1).

    [5] Direction 99, paragraph 8.5(3).

40. The Tribunal must have due regard to the deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[6] The decision-maker determines the appropriate weight to be given to this consideration.[7]

    [6] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.

    [7] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].

41. This consideration weighs in favour of exercising the discretion to refuse the visa.

    Other considerations

    Legal consequences of the decision

42. After this matter had been heard, the High Court delivered its decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154

    (NZYQ) on 8 November 2023.

43. I made directions for the Respondent and Applicant to file submissions to address the relevance, if any, of NZYQ to this case. The Respondent provided submissions. The following is based on the Respondent’s submission dated 16 November 2023.

44. The Applicant is the subject of a protection finding in respect of Iran made by the Refugee Review Tribunal on 27 September 2013.

45. As explained at the beginning of this decision, the refusal of the Applicant’s visa application resulted in the deemed refusal of his application for a Resolution of Status visa. Therefore, there is no current substantive visa application on foot.  

46. The duty to remove the Applicant as soon as reasonably practicable from Australia in section 198 of the Act applies. However, section 197C(3) applies to the Applicant which means he cannot be removed to Iran. Removal must be to a third country.

47. The Respondent accepts that there is no real prospect that it will be practicable to remove the Applicant from Australia to a third country in the reasonably foreseeable future.

48. Following NZYQ, the Applicant is to be released from immigration detention and issued with a Bridging (Removal Pending) (subclass 070) visa (BVR visa). If the Tribunal sets aside the refusal decision and remits the matter to the Minister with a direction that there is another reason not to refuse the Applicant a Bridging E (Class WE) visa, the Applicant will, from the time his release is organised, remain in the community on a BVR visa until the time of any decision of the Minister upon remittal from the Tribunal to grant the Applicant a Bridging E (Class WE) visa.

49. In the event of a refusal decision by the Tribunal or the Minister, the Applicant will, from the time his release is organised, remain in the community on a BVR visa and his visa status will not change as a result of the Tribunal’s decision. The timing of the Applicant’s release will not be impacted by the timing of the Tribunal’s decision.

50. After the Respondent provided its submissions, the Parliament passed the Migration Amendment (Bridging Visa Conditions) Act 2023 (the Amendment Act) which commenced on 18 November 2023. On 21 November 2023 I directed that the parties provide submissions on the consequences for the Applicant of that Act by 5 pm that day.

51. The Tribunal is grateful for the comprehensive submission the Respondent provided within a matter of hours. It included a summary of the amendments that were made by the Amendment Act and set out its instructions in relation to the Applicant:

    1.    On 16 November 2023, the Minister granted the Applicant a BVR visa. That was before the commencement of the Amending Act (old BVR visa).

    2. On 18 November 2023, by operation of section 76A of the Amendment Act, the old BVR visa ceased to be in effect and the Applicant was taken to be granted another BVR visa (new BVR visa).

    3. On 19 November 2023, the Minister exercised his power under reg 2.25AB of the Migration Regulations1994 (Cth) (the Regulations) to grant the Applicant a further BVR visa (further BVR visa). This is the visa that is currently in effect and held by the Applicant. The conditions imposed on the further BVR visa include the conditions imposed by force of clauses 070.611 and 070.612(1) of Schedule 2. We are also instructed that the Minister imposed condition 8620 (monitoring device) and condition 8621 (curfew) under clause 070.612A of Schedule 2 to the Regulations.

52. Moving to the consideration of the legal consequences of the decision, taking into account those matters, the Applicant will not be subject to indefinite detention, whether I affirm or set aside the reviewable decision. The timing of his release from detention is not affected by my decision.  While he currently holds a BVR visa, the Respondent did not indicate whether the Applicant has been released from detention.  I infer that if he has not been, he will be released shortly. 

53. If I affirm the reviewable decision, the Applicant will remain in the community on a BVR visa until his removal to a third country is arranged. The timing of his removal and his destination are uncertain.

54. If I set aside the reviewable decision, the deemed refusal of the application for a Resolution of Status visa will be ineffective. It is not certain that the Applicant will be granted a Bridging E (Class WE) visa, or if he is, that he will be granted a Resolution of Status visa.  

1. However, setting aside the reviewable decision gives the Applicant the possibility of being granted a Bridging E (Class WE) visa and a Resolution of Status visa. 

2. The consideration the Legal consequences of the decision, weighs in favour of setting aside the reviewable decision.

   Extent of impediments if removed

3. In light of the above discussion, the Applicant will not be removed to Iran. There was no suggestion that he would voluntarily return there. When he will be removed from Australia and his destination are uncertain. I give this consideration neutral weight.

   An ‘other consideration’ – cost for the Commonwealth, State and Territory governments

4. An ‘other consideration’ that arose as a consequence of the Amendment Act commencing is the cost to governments of monitoring and enforcing conditions imposed by that Act. The direction made on 21 November 2023 requested the parties to address this consideration. The Respondent’s position is that it does not presently have available information about the costs and submitted that this information is not relevant when considering the legal consequences of the decision for the purposes of clause 9.1 of Direction 99 and to the extent that the costs are relevant as an ‘other consideration’, it should be given little weight.

5. While not specified, it is not speculative to infer that law enforcement resources – financial and personnel – are required to monitor and enforce the conditions of the Applicant’s BVR visa. The Applicant’s offending and the low risk of his reoffending do not warrant the cost to the relevant Australian government of monitoring and enforcing the conditions of his BVR visa. This consideration weighs in favour of not exercising the discretion to refuse the visa.

   CONCLUSION

6. The primary considerations protection of the Australian community, family violence committed by the non-citizen, and expectations of the Australian community weigh in favour of exercising the discretion to refuse the visa. The primary consideration the strength, nature and duration of ties to Australia and the other considerations Legal consequences of the decision and the cost for the relevant Australian government to monitor and enforce the conditions of his BVR visa, weigh in favour of not exercising that discretion.

7. I have decided that those considerations weighing in favour of not exercising the discretion outweigh those considerations favouring exercising the discretion for the following reasons.     The Applicant’s risk of reoffending is low and his offending is in the lower range of offending generally. Being released into the community subject to the conditions imposed on the BVR visa without hope for a future in Australia where he has support, and the uncertainty of  when he will be removed and to where, is a burden that is not proportionate to his offending. The only certainty he would have is that he will not have the support he has in Australia, in the event he is removed to another country.

   DECISION

8. The reviewable decision made on 30 August 2023 by a delegate of the Respondent Minister to refuse to grant the Applicant a Bridging E (Class WE) visa pursuant to section 501(1) of the Migration Act 1958 (Cth) is set aside and in substitution it is decided not to exercise the discretion conferred by subsection 501(1) to refuse to grant a visa to the Applicant.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 22 November 2023

Dates of hearing:	7 & 8 November 2023
Date final submissions received:	16 November 2023
Applicant:	In person
Counsel for the Respondent:	Mr A Hall
Solicitors for the Respondent:	Ms E Warner Knight, AGS