DVRL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2024] ARTA 191

DVRL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 191 (6 December 2024)

Applicant/s:  DVRL

Respondent:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Tribunal Number:                2024/7506

Tribunal: Deputy President K Millar

Place:Adelaide

Date:6 December 2024

Decision:  The Tribunal affirms the decision under review.

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

Deputy President K Millar

Catchwords

MIGRATION – cancellation of Applicant’s permanent Protection (Subclass 866) visa – substantial criminal record – BVR – Direction 110 – Protection of the Australian community – Decision under review affirmed

Legislation

Migration Act 1958 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

BHYK and Minister for Immigration and Citizenship [2010] AATA 662
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40

Secondary Materials

Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA

International Covenant on Civil and Political Rights

Statement of Reasons

1. The Applicant is a citizen of Indonesia who first came to the attention of immigration officials in Australia in 1985. From 1985 until 1991, he was granted a series of temporary entry permits. In 1991 he was found to be a refugee, and in 1996 was granted a permanent Protection (Subclass 866) visa.

2. This visa was cancelled under s 501 of the Migration Act 1958 (Cth) (‘the Act’) following his conviction for manslaughter on 17 September 2001, when he was sentence to a term of imprisonment of seven years.

3. On his imprisonment ending in 2007, he was taken into immigration detention. In 2008, the Minister lifted the statutory bar to allow him to apply for a further protection visa.  He applied for the visa that is the subject of this application on 19 December 2008. 

4. This visa was initially refused under the now repealed section 91U of the Act. Following remittal by the High Court, the Applicant was found to meet the requirement to be a refugee on 13 June 2013. After being found to be a refugee, a delegate of the Minister refused his application for the visa on character grounds under s 501(1) of the Act.

5. This decision was later considered by the Department to be invalid, and his visa application was reconsidered. A finding was again made that the Applicant is a refugee, and that he met the requirements of s 36(2)(a) of the Act for a protection visa.

6. On 19 September 2024, nearly 16 years after he applied for the visa, the Applicant’s application for a protection visa was refused because a delegate of the Minister found the Applicant did not pass the character test, and that his visa application should be refused.  This is the decision being reviewed by the Tribunal.

   RELEASE INTO THE COMMUNITY

7. On the same day the decision was made to refuse his visa application, the Applicant was released from immigration detention into the community on a Bridging Visa R (Subclass 070) visa (‘BVR’). This visa was subject to several conditions, including that he had to abide by a specified curfew and wear and maintain an electronic monitoring device.[1]

   [1] G664.

8. He was issued a second BVR on 7 November 2024, the day after the High Court issued its decision in YFBZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 (‘YBFZ’) which found the curfew and electronic monitoring conditions invalid. The second BVR was not subject to conditions that required him to abide by a curfew and wear and maintain an electronic monitoring device.[2]

   [2] R4.

9. At 10:13am ACST time on 7 November 2024, the Migration Amendment (Bridging Visa Conditions) Regulations 2024 commenced. This amendment provides for BVR’s granted after this time to again be subject to a condition requiring the person to abide by a curfew, and wear and maintain an electronic monitoring device. 

10. On 14 November 2024, the Applicant was granted a third BVR which was again subject to these conditions.[3] Under s 82 of the Act, on the grant of the third BVR the second BVR ceased.

    [3] A8.

    Review of BVR Conditions

11. A person who holds a BVR granted with electronic monitoring and curfew conditions (among other conditions) can make representations to the Minister that a further BVR should be granted that is not subject to these conditions. The Minister or the Tribunal on review must grant a BVR that is not subject to these conditions if the Minister is satisfied these conditions are not reasonably necessary for the protection of any part of the Australian community. An Applicant can apply to the Tribunal for review of a decision not to grant a visa that is not subject to these conditions[4] within 28 days of this decision being made.[5]

    [4] S338(4)(c) of the Act.

    [5] S 347(3)(b) of the Act.

12. The curfew and electronic monitoring conditions to which the Applicant is subject continue for a period of 12 months after the grant of the visa.[6]  After this time, he can again be granted a BVR subject to these conditions, and can again make representations to the Minister and seek review of a decision not to grant him a visa that is not subject to these conditions. 

    [6] R.2.25AE of the Migration Regulations 1994.

13. On 28 November 2024, Parliament passed the Migration Amendment Act 2024 (Cth) (‘Migration Amendment Act’). This Act has not commenced at the date of this decision. In relation to BVR’s the Migration Amendment Act amends the test the Minister (and this Tribunal on review) is to apply on whether a BVR should be granted that is not subject to the curfew or electronic monitoring provisions.[7] The test is amended to: 

    (a)       either:

    (i)the Minister is not satisfied, on the balance of probabilities, that the non‑citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; or

    (ii)if the Minister is satisfied, on the balance of probabilities, that the non‑citizen poses the substantial risk mentioned in subparagraph (i)—the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition, or those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.

    [7] Migration Amendment Act Schedule 6, Item 2.

14. The ability of a person to make representations about an electronic monitoring or curfew condition, and to seek review of a decision not to grant a visa without these conditions, will change on commencement of the Migration Amendment Act. As this applies to the Applicant, it allow him make representations within 28 days of that Act commencing.[8] 

    [8] Migration Amendment Act Schedule 6 Item 5.

15. This means that on this Act commencing, the Applicant will have 28 days in which to make representations that he should be granted a BVR that is not subject to electronic monitoring or curfew conditions and can seek review of a refusal to do so to the Tribunal.  

    OTHER LEGISLATIVE AMENDMENTS

16. To properly consider the submissions of the parties and apply the Direction it is necessary to examine other recent amendments that have passed Parliament but have not yet commemced.

17. On 29 November 2024, Parliament passed the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (‘the Removal and Other Measures Act’). This Act has not commenced at the date and time of this decision.

18. The Removal and Other Measures Act has contingent amendments – that is, there are some Schedules that apply only if the Migration Amendment Act does not receive assent and some Schedules that apply whether or not the Migration Amendment Act commences.[9] 

    [9] S 2 Removal and Other Measures Act

19. If the Migration Amendment Act does not commence, there are changes to the ability to revisit a protection finding.[10] At present, the ability to revisit a protection finding and instead find that the person is no longer owed protection only applies to the ability to remove the person from Australia in s 197C of the Act.[11] The contingent amendments allow a consideration of whether a protection finding would no longer be made for other purposes, including where the person holds a BVR.[12] If a protection finding would no longer be made, removal of the person from Australia becomes possible under s 197C and 198 of the Act, and the BVR may cease in accordance with cl.070.511 of Part 070 of Schedule 2 of the Migration Regulations 1994.

    [10] The term protection finding is defined in s 197C of the Act

    [11] S 197D(1) of the Act.

    [12] Removal and Other Measures Act Schedule 2

20. If the Migration Amendment Act does commence, it provides for a BVR to cease if:

    ·     the person has permission to enter and reside in a foreign country; and

    ·     the foreign country is a party to a third country reception arrangements and

    ·     The person:

    o   does not have a protection visa application that has not been finally determined, or

    o   the person cannot be removed to that country because of a protection finding in respect of that country or

    o   the person is under 18 years of age.[13] 

    [13] S76AAA.

21. This means that where a protection finding has been made in respect of a person for a particular country and the person cannot be removed from Australia because of that finding under s 197C of the Act, the person can removed to a different country that is a party to a third country reception arrangement as defined s 198AHB of the Act, and the person has permission to enter and reside in that country. In these circumstances the person’s BVR ceases because it becomes possible for them to be removed to another country. The other country is not the country where the person cannot return because the person is a refugee.

22. Other provisions in the Migration Amendment Act require the person to co-operate with steps for their removal to a foreign country, and the Removal and Other Measures Act creates a criminal offence if the person does not cooperate with these steps.[14] 

    [14] S 199E as interested by Schedule 1 of the Removal and Other Measures Act. The commencement of this Schedule is not contingent on the Migration Amendment Act commencing.

23. Amendments to other part of the Act that are contingent on the commencement of the Migration Amendment Act relate to the effect of a person seeking the intervention of the Minister.[15]    

    [15] Removal and Other Measures Act Schedule 3.

    ISSUES

24. The issues to be decided in this case are whether the Applicant passes the character test; and, if he does not, whether there is another reason the cancellation of his visa should be revoked.

    BACKGROUND

25. The date of birth of the Applicant is unclear, and he is currently between 63 and 69 years of age. 

26. The Applicant said he worked in the Torres Strait in the 1970’s and came to Australia around 1981. He came to the attention of immigration officials in 1985. According to the Applicant’s statement that accompanied his protection visa application, the Applicant was involved in and fought for the Free West Papua Movement and was arrested and beaten in 1975 because of his activities. He travelled to Australia in 1985 to deliver a letter to the Australian Government seeking support for the independent of West Papua. 

27. The Applicant claims to have many children in Australia, with the number ranging between 14, as stated at the first hearing of his visa refusal in BHYK and Minister for Immigration and Citizenship,[16] and 20 as specified at the current hearing. His children are all adults, and he has contact with his youngest daughter.

    [16] [2010] AATA 662.

28. He reported to the psychologist involved in his assessment that he worked as a crayfish diver, a banana plantation worker, a crocodile hunter, a security worker, and a kitchen hand.  He has more recently involved himself in artwork, and said he hopes to sell his art or become an art teacher.

    LEGISLATIVE FRAMEWORK

29. Under s 501(1) of the Act, 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.

30. The character test is set out at s 501(6) of the Act which includes at s 501(6)(a) that the person does not pass the character test if the person has a substantial criminal record as defined in s 501(7) of the Act. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act).

31. If the Applicant does not meet the character test, the remaining issue is whether there is another reason the decision to cancel his visa should be revoked. 

    DOES THE APPLICANT MEET THE CHARACTER TEST?

32. On 17 September 2001, the Applicant was convicted of manslaughter and sentenced to a term of imprisonment for 7 years. It is not disputed that the Applicant does not meet the character test because he has been sentenced to a term of imprisonment of 12 months or more.

33. His conviction was previously the basis for cancelling his Subclass 866 visa, however this visa was cancelled using the power in s 501(2) of the Act. As it is the exercise of a different statutory power, it does not infringe the principle that the same power cannot be used for the same conviction.[17]

    [17] Minister for Immigration and Border Protection vMakasa [2021] HCA 1.

34. The remaining question is whether his application for the visa should be refused. 

    THE DIRECTION

35. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any directions given by the Minster (s 499(2A) of the Act).

36. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.

37. At the time the notice of intention to cancel his visa was issued to the Applicant, the relevant direction was Direction 99. Before a decision was made, the Applicant was advised by the Department that Direction 110 had replaced Direction 99 and was given an opportunity to make further submissions before the primary decision was made. The Applicant provided further submissions on 23 July 2024.[18] 

    Principles to guide decision making

    [18] Ex G626.

38. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

    (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 safety of the Australian Community is the highest priority of the Australian Government.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[19]

    [19] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).

39. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

    (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3)One or more primary considerations may outweigh other primary considerations.[20]

    [20] Ibid cl 7.

    THE APPLICANT’S RESPONSES TO THE NOTICE OF INTETION TO CONDSIDER REFUSAL OF HIS VISA

40. The Applicant’s responses to the notice of intention to consider refusal of his visa in have  largely focused on responding to incidents that were said to have occurred in the period he was in immigration detention. In this period was also twice convicted for assault and it was submitted this should be viewed against his detention. Other conduct relied on by the Minister was submitted to be minor and a reflection of day-to-day frustrations of people living in detention. Many of the incidents described as more serious or critical were denied by the Applicant.

41. The Applicant provided a clinical psychology report. The psychologist reported that his risk of further aggressive or violent behaviour in the community was moderate to high, and this increases if he is using alcohol or other major psychoactive drugs. It was reported that unless the Applicant was heavily supported in a stable relationship and is medically stable, there is a risk of relapse into substance use. A list of factors which may assist his reintegration in the community was provided. This list includes stable accommodation, ongoing monitoring of his substance use, involvement with one of the Churches, monitoring by mental health professionals, and involvement in a useful occupation or activity. It was submitted that with the assistance of people in the community who support the Applicant, he can get the assistance he needs. The remaining submission was about Australia’s non-refoulement obligations. 

1. A response was provided to further incidents in immigration detention and convictions for destroy or damage Commonwealth property, and threat to cause harm to a Commonwealth Public Official. This response states these offences occurred after another detainee damaged one of the Applicant’s paintings.  He stated that after he confronted the other detainee without escalation, he returned to his room he was handcuffed and dragged from his room. He denies damage to property or threatening an officer despite his convictions.[21]  

   [21] G548

2. The response in 2023 addresses Direction No. 99, the precursor to the current Direction.  This emphasises the time the Applicant has been in Australia, which was then most of his life, and more than his time in his country of origin. This emphasises his contact with Mr Ian Rintoul and Dr Greg Poulgrain in the community over many years. He reiterates that he is owed non-refoulement obligations. 

3. The final submissions on 23 July 2024 responds to further client incident reports in immigration detention and to the current Direction. He reiterates that practical and emotional support will be provided by his supporters in the community, and that the impact of long-term detention should be taken into account. It is argued that as he will be released into the community following the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[22] the protection of the community does not logically weigh either for or against the refusal of visa application as refusing his protection visa will not achieve any community safety objective. 

   [22] [2023] HCA 37.

4. The submission reiterates that the delay in this matter is unreasonable, with the application first being made in December 2008, and a determination made that he was a refugee in approximately 2014. The Australian Human Rights Commission had found that his ongoing detention was arbitrary and in breach of Art 9(1) of the International Covenant on Civil and Political Rights.[23]

   [23] [redacted]. 

   THE PRIMARY CONSIDERATIONS

5. The Direction contains five primary considerations, which are:

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

   (2)       Whether the conduct engaged in constituted family violence;

   (3)       The strength, nature and duration of ties to Australia;

   (4)       The best interests of minor children in Australia;

   (5)       The expectations of the Australian community.[24]

   [24] The Direction, cl 8.

6. I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

   THE PROTECTION OF THE AUSTRALIAN COMMUNITY

7. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.[25]

   [25] Ibid cl 8.1(1).

8. The Tribunal is directed to have particular regard to the principle that entering or 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.[26]

   Does the protection of the community weigh in favor of granting the Applicant a permanent protection visa?

   [26] Ibid.

9. The Applicant argues that the protection of the community favours the grant of a permanent protection visa. He argues the grant of a permanent visa will provide better protection for the community because a permanent visa will reduce his financial stress and improve his financial stability, provide him with access to housing, increase his opportunities for integration in the community, and increase his access to medical treatment. This will address his criminogenic needs because his psychologist made these recommendations to assist his reintegration into the community 

10. It is further argued that being in the community on a BVR, with the conditions of electronic monitoring and a curfew, increases the risk to the community. It is argued a curfew is not necessary to protect the Australian community as the Applicant has not committed an offence during his curfew hours, it may require the Applicant to stay in a stressful situation and heighten the risk of a violent offence, and precludes him from entry level positions such as stacking supermarket shelves or night-time factory work. It is argued this prevent him staying with friends or family members for an evening or going on holidays.

11. The electronic monitoring conditions are said to also be unnecessary as the Applicant’s offending was not tied to a particular geographical area, and increases the risk to the community as it makes the Applicant anxious and stressed and may lead to him viewing himself as a criminal which in turn increases his risk of offending.

12. It is also submitted as breach of these conditions results in a mandatory 12 month sentence of imprisonment which will be counterproductive for his rehabilitation.  It is argued that the BVR increases the risk to the community, and the protection of the community should weigh in favour of granting the Applicant a permanent protection visa.

13. For the following reasons, these submissions should be rejected:

14. The proposition that a permanent visa will better protect the community is speculative. If I were to accept that a permanent visa is necessary to meet the Applicant’s criminogenic needs, I am first required to accept that the Applicant is likely to reoffend. This risk of reoffending is what I am required to assess in considering cl.8.1.2(b) of the Direction. I am not required to assess what the Applicant needs to prevent him reoffending.

15. This submission also requires me to accept that the conditions placed on the Applicant on a BVR will not protect the community. It further requires me to accept it is necessary for the protection of the community to remove the ability of the Australian government to decide that the Applicant is no longer the subject to a protection finding in section 197D of the Act.

16. If his protection visa application is refused, the Applicant will remain in the community on a BVR unless there is a decision that a protection finding would no longer be made in relation to him under section 197D of the Act, or on commencement of the Removal and Other Measures Act his BVR ceases because a foreign country agrees that the Applicant can enter and remain in that country.[27]  

    [27] The amendments to the Act by the Migration Amendment Act 2024, which are yet to commence, insert a new s 76AAA which provides for this to occur, and which is discussed further below.

17. Many of the submissions made about the effect of being on a BVR are not supported by the evidence about the Applicant’s current situation:

    ·The psychology report relied on by the Applicant in support of the submission that a permanent visa will provide protection to the community, lists support services as one factor in predicting how he is likely to behave in the community. Support services are factors that the psychologist considers will assist in his reintegration, rather than addressing risk the Applicant poses to the community. There is a significantly longer list of factors in the psychology report that affect risk which have no relationship to his visa status or his reintegration into the community.  These include his culture and experience of violence, the age at which he commenced violent offending, his likely relationship status, the loss of structure from being released from immigration detention, his substance use, his willingness to access services, and his involvement in the Church.[28] 

    ·The Applicant has a Medicare card and a Healthcare card, and he has access to medical treatment and reduced cost medication.[29] 

    ·He is currently receiving a Centrelink payment of special benefit, and while the grant of this payment is discretionary, the Applicant has not provided any information to show this payment was granted for a particular period or will end.  His payments will otherwise continue unless he fails to comply with the provisions of the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth). He has financial security.

    ·The curfew condition requires the Applicant to remain at a notified address between 10pm and 6am.[30] The grant of the Applicant’s current BVR is accompanied by information that he can notify the Department of his location by 12 noon the same day he wants to stay in another location.[31] This condition will not prevent him staying with friends or family or going on holidays.  The issue of staying in an environment where he is at high risk of reoffending does not support his rehabilitation or that the risk to the community has decreased. 

    ·The Applicant have evidence that he plans to progress his artwork and perhaps to provide art lessons. He said he rarely leaves his residence, and complying with a curfew does not cause him difficulty. 

    ·The Applicant currently has accommodation arranged for him by support services and says he would like to live with his friend in regional NSW. He has a life skills educator assisting him for 9 hours a week and who can assist him in learning how to access the rental market should he wish to access alternate accommodation.  While he is not eligible for public housing, his accommodation needs are met.

    [28] G407 – 407.

    [29] Ex R4.

    [30] Migration Regulations 1994, Schedule 8, Item 8620.

    [31] Ex A8.

18. Given this evidence of the support he receives, the link between having a permanent visa and the protection of the community is tenuous as best and I do not accept the submission that the protection of the community weighs in favour of granting the visa. 

19. Proceeding to the remaining factors in the protection of the community, I have considered the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[32]

    [32] Ibid cl 8.1(2).

    Nature and seriousness of the conduct

20. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[33] 

    [33] Ibid cl 8.1.1(1)(a).

    Criminal offending and other conduct

21. Prior to his imprisonment for manslaughter and subsequent detention due to the cancellation of his visa, the Applicant was convicted of a series of property, assault, and drug offences. His offending history commences in 1986 with a conviction for behave in a disorderly manner. Later the same year, he was convicted of destroy/damage property.

22. In 1991 he was convicted of recklessly cause injury, assault on company and failure to answer bail. In 1992 he was convicted of threat to inflict serious injury, intentionally damage property and unlawful assault. 

23. In 1992, he was convicted on three separate occasions for unlawful assault and was also convicted of assault in company and wilfully damaging property. In 1994 he was convicted of internationally or recklessly cause injury, and on appeal was sentenced to a 12-month community-based order, which he breached. In 1995 this order was cancelled, and he was sentenced to 4 months imprisonment. 

24. In 1997, a charge of possessing dangerous drugs was found proven with no conviction recorded. 

25. In 1999, he was convicted of wilful damage, breach bail obstructing a police officer and possessing dangerous drugs.

26. While in immigration detention, the Applicant was convicted in 2011 and 2012 for common assault, and in 2015 for destroy or damage Commonwealth property and threatening to cause harm to a Commonwealth Public Official. The sentencing remarks for the offences while in immigration detention do not shed any light on what occurred, and the Applicant did not give evidence on these offences. In his statement of May 2014,[34] he admits he assaulted two detention service providers and pleaded guilty. He denied using a makeshift weapon, being a broom handle, against a detention services provider. 

    [34] G390.

27. The most significant offence that has led to the cancellation of his previous visa and the refusal of the current visa is his conviction for manslaughter in 2001. In sentencing, De Jersey CJ states:[35]

    Your victim was 28 years old.  She was then your de facto wife.

    …

    It is a terribly sad feature that she is dead but also that at the time she died, she as 15 weeks’ pregnant. You killed her during an argument by hitting her about her head with a child’s bicycle. It was a spontaneous act and you were drunk at the time. 

    [35] G256.

28. The Applicant served the entirety of his sentence as he was not granted parole. 

    Other Conduct

29. Over the years since the Applicant lodged his visa application, he has been asked to respond to many incidents that have occurred while he has been in immigration detention.  These are incidents recorded in incident reports by the detention centre. 

30. The Minister submits he has been the subject of over 71 adverse incident reports while in immigration detention and as recently as June 2024 assaulted a fellow detainee with a pool cue. 

31. The Minister describes these as “serious adverse incidents” and does not rely on this conduct as “other serious conduct” which is defined in the Direction. This distinction is of some importance in applying the Direction, as some clauses of the Direction refer to “conduct” and other clauses to “serious conduct”. The protection of the Australian community in cl.8.1. (1) refers to protecting the community from harm as a result of criminal activity or other serious conduct, however in assessing the nature and seriousness of the conduct, all conduct may be considered, whereas in assessing the risk the Australian community, only serious conduct is considered. 

32. In his response of May 2014,[36] attached to a submission from his legal representative at that time, the Applicant states incidents of threatened, attempted or actual self-harm, voluntary starvation, and demonstrations of abusive or aggressive behaviour are a result of his lengthy detention. He admits to assault of a detention service provider (DSP), and he pleaded guilty to this offence. He denied having makeshift weapons. He denies an assault for which he was convicted against another detainee. He denies other conduct in the incident reports including supplying and smoking marijuana, other possession of weapon incidents and possession of contraband. He denies punching a hole in the wall of the internet room. 

    [36] G390.

33. Other conduct contained in the incident reports includes threats to kill and abusive behaviour towards Serco staff, attempting to ransack the officer station, damage to property, being abusive to nursing staff, spitting at staff.

34. In further submissions from his representative, addressing the incidents that now numbered 209, it is submitted many of these are minor, and some are recorded more than once. It is stated many of the minor incidents reflect a general frustration with the way medication is issued in the detention centre or are in close proximity to the Applicant’s property being confiscated. It is acknowledged he damaged a glass panel, and claims that while he pointed a multi-purpose cleaning spray at a staff member he did not spray it, that he did not consider a screwdriver and cut pool cue found in his room to be weapons. He states he had the screwdriver because he was known to be a handman, and that it was not unusual to cut down pool cues and rejoin them to make them shorter. 

35. In the most recent incident reports, on 22 June 2024, it is alleged that the Applicant used a pool cue as a weapon to strike another detainee to the head, causing the pool cue to break into 3 pieces. It is reported the Applicant said that that the other detainee may have entered his room in his absence, and he got upset and challenged the other detainee out of frustration and hit him on the left side of his head area. The other detainee did not sustain physical injury and did not require medical attention. The other detainee signed a police statement saying he did not want to press charges.

36. On 19 July 2024, the Applicant refused to hand over a pool cue found during a “property run” and he was told he had to leave the item and is described as becoming abusive. 

37. The reports from International Health and Medical Services (IHMS) provided by the Applicant report that he as a history of abusive/aggressive behaviour throughout his time in detention. In December 2023 he was reported to be yelling at clinician, threatening a staff member he would punch them in the face and punching the window of the medication room while staff were inside.[37]

    [37] A5, 19 – 20. 

38. A long-term advocate for the Applicant, Mr Ian Rintoul of the Refugee Action Coalition states that until recently the Applicant was resigned to spending the rest of his life in immigration detention. Mr Rintoul states arbitrary and contradictory decisions and rule changes were common in immigration detention, for example water colour paints being confiscated and points that can be used for the canteen were deducted without explanation. Mr Rintoul considered arbitrary rule changes were deliberately manufactured to cause distress and provoke the Applicant. He states the Applicant is known as a person who stands up for the rights of others and who opposes room searches.

39. While I accept that prolonged detention caused the Applicant distress, given the documented incidents in the records of immigration detention, the information before me does not establish that the Applicant was subjected to arbitrary rule changes or explained deduction of merit-based points that led to his behaviour, although this may be how the action was perceived by the Applicant and reported to Mr Rintoul.

40. The Applicant was not asked to explain or address this conduct at the hearing, however provided a statement in May 2014 and several submissions on these incident reports. It was acknowledged by his representative at the start of the hearing there was only a narrow dispute on the facts. In relation to the Applicant’s conduct in immigration detention, the incident reports, the previous statement of the Application and submissions on these facts are all the information before me.   

41. Explanations of his conduct have generally been that his conduct is a result of the day-to-day frustrations of people living in immigration detention.[38] The Applicant denies allegations that he possessed weapons, stating that the items found in his possession, being a broken dustpan or broom handle and sharpened metal skewers where either not broken or used for his artwork, were not weapons.[39]

    [38] G385.

    [39] G385 – 386, G390-391.

42. Where there is no response from the Applicant, I accept the broad nature of what has occurred as reported in the absence of any information to rebut the record of the detention centre. I see no reason why, for example, an allegation that a pool cue had been used to hit another detainee would be recorded, with the various other follow up activities, unless this had occurred. In the records regarding this incident, the Applicant is recorded as acknowledging this did occur, and the incident was not disputed. Where the incidents are minor and the facts disputed, I accept that the frustrations of living in detention contributed to the events.

43. While the Applicant has been in immigration detention for many years, and at the time of many of the incidents would not have seen an end point for his detention which would add to his frustrations, his behaviour is also a continuation of his conduct before he was convicted of manslaughter. He has a history of assault and damage to property, and this behaviour has continued, but was undoubtably aggravated by, his prolonged detention.  The Applicant does not perceive his actions and behaviour as being as threatening as they are to others, and that his denial of offences such as damage to property and threatening a government official, and is reports to his advocates do not reflect what has occurred. 

    Seriousness of Conduct

1. Crimes of a violent or sexual nature against women and children, such as that committed by the Applicant, are regarded as very serious, regardless of the sentence imposed.[40] The offence of manslaughter was a violent crime against a woman and is viewed as very serious. It is not necessary for the sentence for manslaughter to be considered further.[41] 

   [40] Ibid cl 8.1.1(1)(a). 

   [41] Cl.8.1.1(1)(c)

2. After his conviction for manslaughter, the Applicant has been convicted of common assault on two separate occasions. For one of these assaults, a conviction was recorded with no further penalty, and for the other the Applicant was fined and required to enter a bond for 12 months. Both assaults occurred while the Applicant was in immigration detention and are accordingly regarded as serious.

3. In being convicted for threat to cause harm to a Commonwealth official in 2015, he was sentenced to a term of imprisonment of 12 months but released on entering a good behaviour bond for two years. The conviction for destroy or damage Commonwealth property was taken into account in this sentence. Threatening a Commonwealth public official, as an offence against a government official in the performance of their duties, is also viewed as serious.[42]

   [42] Ibid cl.8.1.1(1)(b)(ii)

4. Other factors to be considered in assessing the nature and seriousness of the conduct are, in summary:

   ·the impact on any victims of the offending,

   ·the frequency of offending and/or whether there is any trend of increasing seriousness,

   ·the cumulative effect of repeat offending,

   ·whether the non-citizen has provided false or misleading information to the Department,

   ·whether the non-citizen has re-offended since being formally warned or otherwise being made aware in writing of the consequences of further offending; and

   ·where the offence was committed in another country, whether the offence or conduct is classified as an offence in Australia. 

   Impact on the victim

5. The victim of his offending, who was pregnant at the time, died because of the offending.  There is no information available on the impact on family members of the victim.

   Increasing seriousness, cumulative effect, false and misleading information, and warnings

6. The Applicant started offending in 1986 with disorderly conduct, but by 1989 was convicted of grievous bodily harm. There are a series of assault and recklessly causing injury offences, with the last conviction before the manslaughter offence for causing injury in 1995. He has infrequent but consistent convictions for damage to property. 

7. I consider his offences for assault, recklessly causing injury and grievous bodily harm prior to the conviction for manslaughter show there is a trend of increasing seriousness, which then diminished on his imprisonment and detention.  He has again committed assaults in immigration detention, with the most recent being approximately 9 years ago.   

8. There is a cumulative effect to his offending given the gravity of his violent offending commencing with grievous bodily harm, the assault offences and the intentionally or recklessly causing injury prior to the offence of manslaughter. 

9. There is no information before me to show the applicant has provided false or misleading information. 

   Reoffending after being warned.

10. The Applicant has been convicted of four offences after his visa was cancelled, when he can be taken to have been aware that further offending will not assist his application for the visa.  In considering this reoffending, I have also considered the length of his detention and that at the time of the offending there was no known end point to his detention. 

    Conclusion

11. The nature and seriousness of the Applicant’s conduct is severe given the gravity of the manslaughter conviction in which his de facto partner, who was pregnant at the time, died.  This was both preceded and followed by further offence involving harm to others and to property. Manslaughter and offences committed while in immigration detention are viewed as very serious or serious respectively by the Australian government and the Australian community. 

    Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

12. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[43]

    (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some 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 may be unacceptable.

    (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence on the risk of the non­citizen re-offending; and

    ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

    [43] See also the Direction, cl 8.1(2)(b).

13. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[44] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[45] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[46]

    [44] The Direction, cl 8.1.2(2)(a).

    [45] Ibid cl 8.1.2(2)(b).

    [46] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

    Nature of the harm

14. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[47]

    [47] The Direction, cl 8.1.2(2)(a).

15. If the Applicant were to reoffend in a similar way, there is a risk is of death or physical harm to another person. There is also a risk of damage to property.

16. As there is a risk of death should the Applicant reoffend in a similar way, in applying cl.8.1.2(1) of the Direction, the tolerance of any risk reduces. The harm is such that any risk of it being repeated is not acceptable. 

    Likelihood of the non-citizen engaging in further criminal or serious conduct

17. The Applicant in submissions relied on his increasing age and state of health and his abstinence from alcohol and drugs as matters that show his risk of further criminal conduct is low. He states he is unbale to walk far, and has not had alcohol or drugs for 20 years. He states he is remorseful and sad that his daughter lost her mother, that he was disappointed she was cheating on him but should have walked away. He states, “If someone does not want to be with me, I would tell them to leave and walk away”.[48]

    [48] A1.

18. An assessment by a psychologist in April 2014[49] found there was a moderate-high risk of further violence which would likely be increased if he we abusing alcohol or other psychoactive substances.[50]  It is reported the Applicant said he does not intend to use drugs or alcohol, but that it was difficult to feel confident in this given it was unclear where he would go in the community and the supports he would have. This report describes a history of violence in the Applicant’s life from a young age at home and when engaged in warfare, his history of serious offending in Australia, and incidents of aggression and violence in prison and in immigration detention. 

    [49] G396.

    [50] G406.

19. Consultant psychiatrist reports from Dr Walker in 2008[51] and 2010[52] report the Applicant has a personality disorder and his denial of behaviour problems in prison and immigration detention and his description of the manslaughter offence were inconsistent with other sources of information. He is assessed as being a high risk of further violent offences and that he continued to use threats to get what he wants with little insight into his temper. It is reported he will not benefit form psychiatric or psychological treatment. 

    [51] G349.

    [52] G355.

20. A psychology report in 2010 assessed the Applicant as having a moderate risk of recidivism, with aggression described as they way in which the Applicant expresses himself due to his culture and the influence of machismo. His recidivism is described as more easily managed if he is capable of sustained abstinence and provided treatment around impulse control. It was considered impulse control improves with age and his risk was described as moderate based on his age.

21. The corrective services report from 2002[53] state he has a high risk of reoffending, with history of violent offending at a young age, limited expression of victim empathy, externalising blame, not appearing to have internalised materials from programs, reports while in custody of intimidation and using stand-over tactics to get his way. His overall behaviour was described as poor. 

    [53] G372.

22. In summary the reports before me, while 10 years or more old, consistently state the Applicant remains at least a moderate risk of violent offending and describe a lengthy history of violence. 

    Age and state of health

23. The Applicant’s age is uncertain, with differing records of his age. He is between 63 and 69 years old. He takes medication for diabetes, heart disease, high blood pressure and arthritis in his knee. He states he cannot stand for long, and if he does his knees shake and he must sit down. He can walk for 45 minutes. The reports from IHMS also record these conditions. 

24. The Applicant provided an occupational therapy report[54] from an assessment conducted in February 2024.  This report noted his standing tolerance was poor and he showed an ability to walk slowly. 

    [54] A1, 28.

25. Reports are mixed about the Applicant’s mental health. The occupational therapist noted his MMSE had declined but did not record an assessment, and observed he could sustain attention and concentration. Reports from IHMS show that in October 2023 he is identified as having a possible frontal lobe impairment but had improved results in February 2024 where a psychiatrist reported no evidence of mental illness and that he scored well on cognitive screening.[55]

    [55] A5, 17 and 19.

26. In March 2017 IHMS report he was identified by a psychiatrist as having a narcissistic personality disorder, and declining further investigations for neurological causes.[56] 

    [56] A5,18.

27. As noted above, the Applicant is reported to be abusive/aggressive towards IHMS clinicians.[57]

    [57] See paragraph 81.

28. The Applicant is now older and has multiple health condition and his mobility is reducing due to arthritis in his knees. However, this has not prevented him acting in a threatening way, including towards the clinicians involved in his care.  While there have been varying report on his neurological and mental health, the most repost is that he does not have a mental illness and he scored well on cognitive screening. 

    Alcohol and other drugs

29. The sentencing remarks record that the Applicant was drunk at the time of the manslaughter offence. The psychiatry and psychology report remark on the risk of aggression being affected his use of drugs and alcohol. The Applicant states he has not had alcohol or drugs for 20 years and does not intend to use alcohol or drugs. He has not provided any evidence of formal rehabilitation. 

30. At the hearing, the Applicant gave the following evidence about his drinking preceding and at the time of the offence:

    Q:Back in the year 2000 when the offending occurred against your ex-partner drinking was a big part of your life?

    A:Not really, but I drink that day because I thought I’m going to forget it, but it become part of the trigger. 

    Q:       You at least drank that day do you say?

    A:        Yes, I already gave up 2 years before that.

    Q:And then why, if you’d given up 2 years before that why did you return to drinking that day.

    A:Well, I thought that in Australian culture man drink to forget things but that didn’t happen to me.

31. Given he had already given up alcohol for a two-year period before the offence, I place less weight on his current intention not to drink. I also place less weight that his period of abstinence, while being for 20 years, establishes that he will not drink again to cope or ‘forget things’ when alcohol is more readily available or that his lengthy abstinence reduces his risk to less than a moderate risk of reoffending. 

    Protective factors

32. The Applicant has had the support of at least three members of the community over many years. Mr Rintoul has provided statements in support of the Applicant since 2007 when the Applicant entered immigration detention. Mr Rintoul is one of the founding members of the Refugee Action Coalition and has been in regular contact with the Applicant since his release speaking to him every day. He offers to provide connection with refugee groups and mental health professionals in the community.    

33. Mr Julian King states he has been friends with the Applicant for the last 5 years, and the Applicant is assisting with the research for his doctoral thesis on the Applicant’s country of origin. Mr King has offered Applicant accommodation at his home in regional NSW, and which is 12 km from hospitals and mental health services, and 20km form a regional centre. Mr King has another friend from the Applicant’s country of origin staying with him, which he considers will assist the Applicant reintegrate.

34. Dr Poulgrain has known the Applicant since 1986, and prior to his offending assisted the Applicant obtain housing. Dr Poulgrain says he visited the Applicant a few times in prison and occasionally visit in immigration detention but had regular telephone contact.

35. The Applicant says he also has the support of Kolinio Diloi; however, Mr Diloi did not provide a statement in the current proceedings, and his current views are unknown. The Applicant states Mr Diloi has offered to provide biblical counselling and guidance over the phone. 

36. The support of these people will assist he Applicant and is a protective factor against reoffending. 

37. The Applicant is receiving an extensive package of services through the Status Resolution Support Service (SRSS).[58] He was provided an initial living allowance and was assisted to find accommodation, but said he found it hard in his accommodation as the behaviour of others is annoying. SRSS have assisted him to obtain a Medicare card and Centrelink benefits. He is contacted three times a week for support, is assisted to obtain his medication, and spends three hours, three times a week with a life skills educator. He has been introduced to a psychologist. The support services are available for 12 weeks, with a further 12-week extension option. 

    [58] R3.

38. A Social Worker from Legal Aid, Mx Pettitt provided a report and gave oral evidence. Mx Pettitt states that the services available through SRSS and Settlement Services international (SSI) will continue no later than September 2025. Mx Pettitt considers that when the services cease the Applicant will be at increased risk of recidivism as he will find it more difficult to access affordable housing, healthcare and financial support. Mx Pettitt considers that to mitigate the risk of recidivism the Applicant needs long term access to low cost or free community support which is best met by a permanent visa. If the Applicant is granted a visa, Mx Pettitt can provide three months support as the SRSS will cease. 

39. There is currently intensive support for the Applicant in the community, and this is acknowledged to mitigate the risk of recidivism. It is implicitly acknowledged that the Applicant is a risk to the community without support services. The Applicant has the long-term support of an advocate and other involved in research about his country of origin. However, the accommodation and support they can provide is untested in personal day to day contact with the Applicant, given his history of aggression I consider it unknown if this is sustainable. 

40. While there are factors that will reduce the Applicant’s risk of reoffending I do not consider these to address to a significant degree the risk to the community given his longstanding patterns of behaviour. 

    REHABILITATION

41. The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence. 

42. There is little evidence of rehabilitation from the date of the manslaughter conviction. The Applicant engages in artwork and states he has not used alcohol or other drugs for over 20 years. I do not consider there is information before me to show he has engaged in rehabilitation about the use of threats and violence towards others, or that he has significantly changed his approach to being frustrated or to achieving what he wants. 

43. I find that there is a moderate likelihood the Applicant will reoffend, and that risk to the community is severe.

    Conclusion on the protection of the Australian community

44. Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the I consider that this primary consideration weighs heavily in favour of refusing to grant the visa.

    FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

45. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.

46. The Direction states that 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 by the non-citizen.[59]

    [59] The Direction, cl 8.2(1).

47. The term ‘family violence’ is defined in the Direction as violent or threatening behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful. The conviction for manslaughter was described by the sentencing judge as being the manslaughter of his de facto partner, which is an act of family violence. There is no information before me of other acts of family violence.

48. Due to the gravity of the act of family violence, resulting in the death of the Applicant’s de facto partner, I consider this factor weighs heavily in favour of not revoking the cancellation of the Applicant’s visa. 

    THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

49. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia.  Clause 8.3 of the Direction provides that:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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 non-citizen 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.

    Immediate family

1. The Applicant claims to have many children in Australia with the number of children ranging between 14 and 20. 

2. The Applicant states he keeps in touch with his daughter who works in the Northern Territory and his son who is in Victoria. He states his daughter plans to visit him when she has holidays and that he hopes to reconnect with all his children. 

3. None of his children provided statements or attended to give evidence at the hearing. The Applicant said he does not really have contact with his children other than his youngest daughter. His daughter did not provide a statement because it is difficult for her because her mother passed away, and he does not want his children involved in his situation because it might affect them. He said his daughter has told him she does not hate him, and it was not his fault.  

4. He says he has seven grandchildren but could not name more than two of them. He could not name their school and acknowledged he is not in regular contact with any of them, having last spoken to one of his grandsons in 2005. He says three live in Brisbane and four live in Melbourne.   

5. I consider there is little impact on immediate family members if he is not granted a visa.                   

   Other ties to the Australian community

6. Consideration of the Applicant’s other ties to the Australian community is only required in considering whether to cancel a visa, or not to revoke the cancellation of a visa. It does not apply to a refusal to grant a visa. In any event, the Applicant has been unable to build ties to the community, other than with those who have supported him while in detention, due to his lengthy incarceration and prolonged detention.

7. Overall, this consideration is given slight weight against refusing to grant the Applicant a visa.

   BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.

8. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must decide whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.

9. The Applicant acknowledges that there are no children under the age of 18 years who will be affected by the decision. He said he last had contact with one of his grandchildren in 2005 when his grandson was 4 or 5 years old, placing this grandchild over 18 years of age now. 

10. Having considered the best interests of minor children as set out in cl 8.4. of the Direction, I consider that this weighs neither for nor against revoking the cancellation of the Applicant’s visa.  

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

11. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

12. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[60] 

    [60] The Direction, cl 8.5(2).

13. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

14. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

15. As the Applicant has been convicted of an offence regarded as very serious by the community, the community expects the government that will not allow him to remain in Australia in accordance with cl 8.5(1) of the Direction. Despite this expectation, the Applicant will remain in Australia because he is the subject of a protection finding unless this finding would no longer be made or arrangements made for him to enter and reside in another country. As he cannot be removed, he will be in the community and be subject to the conditions imposed on his BVR. 

16. In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In applying these principles, I find this consideration weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.

    Other considerations

17. Clause 9 of the Direction states:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)        legal consequences of the decision;

    b)        extent of impediments if removed;

    c)        impact on Australian business interests.

    Legal consequences of decision under s 501 or 501CA

18. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[61] In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act. In general, a person who does not hold a visa must be removed from Australia in accordance with s 198 of the Act.

    [61] Ibid cl 9.1.

19. Under s 197C of the Act, for the purposes of s 198 it is irrelevant whether Australia has non-refoulment obligations regarding the Applicant. However, under s 197C(3) of the Act the duty to remove does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made, and this decision has not been quashed or set aside, a decision under s 197D that a protection finding would no longer be made has not been made, or the person has been asked the Minister, in writing, to be removed.

20. A legal consequence of refusing the visa under s 501(1), as specified in cl9.1.1(3) of the Direction is that s 48A of the Act bars the person making a further application for a protection visa while in the migration zone unless the Minister decides s 48A does not apply. The person is prevented from any other type of visa except a BVR.

21. A finding has been made that the Applicant meets s 36(2)(a) of the Act because he is a refugee. As a result, there is no legal obligation to remove him from Australia unless a decision is made under s 197D of the Act that a protection finding would no longer be made, or if on commencement of the Removal and Other Measures Act a foreign country who is a party to a third country reception arrangement had given him permission to enter and remain in that country and a protection finding would not be made in respect of that country.[62] 

    [62] S76AAA of the Act.

22. The Applicant argues that the enactment of the Removal and Other Measures Act exposes him to a risk of non-refoulment as he could be removed to Papua New Guinea and from there be returned to Indonesia. It is submitted that he as may detained indefinitely offshore.

23. I must make an assessment at the time of this decision. At this time neither amending Act has commenced, no arrangements have been made with third party counties, it is unknown if Papua New Guinea would be one of those countries, and it is unknown if the Minister would seek permission for the Applicant to enter and reside in any other country. I do not consider I can attach weight to a speculative scenario, rather than one likely to occur in the reasonably foreseeable future. 

24. What is reasonably foreseeable is that one or both amending acts will commence and if this occurs there will be a power to enter into arrangements with third party countries. I do not consider it a current legal consequence that the Applicant will be removed from Australia, or that his BVR will cease and he will be detained as a result of an ability to remove him from Australia. 

25. The Applicant was first granted a BVR on 19 September 2024 as there were no reasonable prospects of him being removed from Australia becoming practicable in the reasonably foreseeable future. 

26. A BVR allows the visa holder to remain in Australia and ceases on the Minister giving notice that the Minister is satisfied that the visa holder’s removal from Australia is reasonably practicable, or the holder has breached a condition to which the visa is subject.[63] In addition, failing to comply with the conditions on his BVR may result in the Applicant committing offences under the Act and, if convicted, the Court must impose a sentence of imprisonment of at least 12 months.[64]

    [63] Migration Regulations 1994 (Cth) sch 2 pt 070 cl 070.511.

    [64] Migration Act 1958 (Cth) s 76DA.

27. The BVR granted to the Applicant is subject to 22 conditions, which are included in Attachment 1 to this decision. As found in YBFZ the curfew and monitoring conditions contained in the BVR granted 19 September 2024 were invalid. 

28. The second BVR with a grant notice dated 7 November 2024 with a date of effect of 20:30 AEDT on 6 November 2024 did not contain those conditions and could not contain them because YBFZ had been decided and the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (‘the BVR Amendments’) had not yet commenced.

29. The third BVR granted 14 November 2024 again contained conditions that include a curfew (conditions 8620) and a monitoring device (condition 8621). It is not subject to conditions 8617 or 8618. 

30. The curfew and monitoring conditions have been re-established by the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (‘the BVR Amendments’) which applied from 10.13am 7 November 2024. The BVR Amendments require conditions 8621 (monitoring device), 8617 (receipt and transfer of sums over AUD10,000), 8618 (incurring debts of over AUD10,000 or becomes bankrupt) and 8620 (curfew) to be imposed where[65]:

    ·the visa is granted because there is no real prospect of the person being removed, and

    ·the Minister is satisfied on the balance of probability that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence, and

    ·the imposition of these conditions is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk. 

    [65] Migration Regulations 1994, Schedule 2, Part 070, cl.070.612A.

31. If conditions 8620 or 8621 are imposed, the person can make representations to the Minister about why the person’s BVR should not be subject to those conditions.[66] A decision not to grant a BVR that is not subject to these conditions is subject to further review by the Tribunal under s 338(4)(c) of the Act. There is no information to show the Applicant has made representations to the Minister that his visa should not be subject to the electronic monitoring or curfew conditions or that he has sought review of a decision not to grant him a visa that is not subject to these conditions.

    [66] s 76E of the Act and r.2.25AD of the Migration Regulations 1994

32. Under Item 5(2) of Schedule 6 of the Migration Amendment Act 2024, the Applicant has 28 days from the commencement of that Act to make representation about why these conditions should not be imposed. As these conditions can only be applied for a period of 12 months[67], the ability to seek review of the imposition of these conditions arises every 12 months if they are reimposed in the grant of a further BVR. 

    [67] R.2.25AE Migration Regulations 1994.

33. The Applicant therefore has further avenues to request these conditions are not imposed on his BVR. As he argues these conditions cause him anxiety and may cause him to feel like a criminal and therefore increase his risk of offending, he can raise these arguments to the Minister, and if unsuccessful to the Tribunal on a review, as representations about why his BVR should not be subject to conditions 8620 or 8621. 

34. The remaining condition which, if breached, result in the commission of an offence that applies to the Applicant is condition 8624 which applies in circumstances which include where the person has been convicted of an offence involving violence. It requires the Applicant not to contact or attempt to contact the victim of the offence or a member of the victim’s family. This is a criminal offence under s 76DAC unless there is a reasonable excuse as defined in s 76DAC(3) of the Act.

35. In this case, the victim of the Applicant’s violence was his de facto partner. If there are children of this relationship, he will be prevented by condition 8624 from contacting or attempting to contact any children of the relationship. It was inferred that the daughter the Applicant has contact with is a child of this relationship as he said he felt sorry for her because her mother passed. If this is the case the effect of this condition is that the Applicant cannot have contact with his daughter, or to re-establish a relationship with any other children of this relationship, which I infer would cause significant emotional hardship. Any attempts to contact her could result in the commission of a criminal offence unless he has a reasonable excuse to do so. 

36. In summary, the legal consequences of the decision to refuse his visa is that the Applicant is subject to a BVR and will remain in the community unless a protection finding would no longer be made or on commencement of the amending acts another country agrees he can enter and reside in that country. The Applicant will not be eligible for services that require him to be an Australian citizen as outlined under the protection of the community above. His BVR means he is subject to certain conditions including a requirement not to contact any family members of the victim of his offending which may include his adult children. He is presently subject to electronic monitoring and a curfew however he can make representations to the Minister about why his visa should not be subject to these conditions. If unsuccessful before the Minister, he can seek a further review to this Tribunal. 

37. Overall, and given the condition that prevents the Applicant contacting children of the relationship with the victim of the offence, the legal effect of the decision attracts                   some weight against refusing to grant the visa.

    Extent of impediments if removed

38. Clause 9.2 of the Direction provides the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. This must consider the Applicant’s age and health, language and cultural barriers and social, medical and/or economic support available to the Applicant in their country.

39. The Applicant will not be removed from Australia as there is a protection finding that prevents his removal, the amending acts have not commenced and there are no third country agreements. If his visa remains cancelled, he will remain in the community on a BVR. As he will not be removed from Australia, unless other events occur such a decision a protection finding would no longer be made under s 197D, or a foreign country gives permission to enter in reside in that country and his BVR ceases. No country has been specified for removal, and this assessment cannot be conducted if the country is not identified.

40. There is no known country to which the Applicant can be removed. As he will not be removed this does not apply.  

    Impact on Australian business interests

41. Clause 9.3 of the Direction states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

42. The Applicant will not be removed from Australia and does not have a connection with employer in Australia, and there is no impact on Australian business interests.

    CONCLUSION

43. The Applicant does not pass the character test, and I must consider whether his application for a visa should be refused.   

44. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.

45. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[68]

    [68] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

46. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[69]

    [69] [2023] FCAFC 138, [23].

47. In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them using the guidance provided by the Direction. 

48. Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[70] 

    [70] Ibid [27].

49. In the circumstances of this case, including consideration of the Applicant’s prolonged detention, I consider the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations. The protection of the community, that the conduct constituted family violence and the expectations of the community weigh heavily in favour of not granting the visa.  The Applicant’s ties to Australia attract some weight in favour of not refusing to grant the visa.  The best interests of minor children weighs neither for nor against refusing to grant the visa.  Of the other considerations, the legal consequences of the decision attracts some weight in favour of not refusing to grant the visa.

50. Looking at these factors, I consider the Applicant’s application for a visa should be refused and the decision under review is affirmed. 

    DECISION

51. The decision under review is affirmed.

Date of hearing:	20 November 2024
Counsel for the Applicant:	Dev Bhutani, Maurice Byers Chambers
Solicitors for the Applicant:	G McAleese, Legal Aid NSW
Counsel for the Respondent:	Thomas Liu, 7 Wentworth Selbourne
Solicitors for the Respondent:	H Dejean, Australian Government Solicitor

ATTACHMENT 1: Bridging R (Class WR) (Removal Pending) (subclass 070) VISA CONDITIONS as at 14 November 2024

8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the

Australian community or a group within the Australian community.

8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.

8514 – No change in circumstances
During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.

8541 - Must Assist with Removal
The holder:

(a) must do everything possible to facilitate his or her removal from Australia; and

(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

8542 – Report for removal from Australia
The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.

8543 - Facilitate removal from Australia
The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.

8551 – Obtain approval for certain occupations

(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations, or occupations of a similar kind:

(a) occupations that involve the use of, or access to, chemicals of security concern;

(b) occupations in the aviation or maritime industries;

(c) occupations at facilities that handle security-sensitive biological agents.

(2) In this clause:

Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify the chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.

8553 – Must not be involved in activities prejudicial to security

The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

8554 – Must not acquire specified goods

(1) The holder must not acquire any of the following goods:

(a) weapons;

(b) explosives;

(c) material or documentation that provides instruction on the use of weapons or explosives

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

8555 – Obtain approval before undertaking specified activities
The holder must obtain the Minister’s approval before undertaking the following activities, or activities of a similar kind:

(a) flight training;

(b) flying aircraft.

8556 – Must not communicate with specified entities or organisations
The holder must not communicate or associate with:

(a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or

(b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

8560 – Obtain approval to acquire chemicals of security concern

(1) The holder must obtain the Minister’s approval before acquiring chemicals of security concern.

(2) In this clause:

chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:

(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

8561 – Must attend interview if directed
If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder’s visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.

8562 – Must not take up specified employment

(1) The holder must not take up employment in:

(a) occupations that involve the use of, or access to, weapons or explosives; or

(b) occupations of a similar kind.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

8563 – Must not undertake specified activities

(1) The holder must not undertake the following activities, or activities of a similar kind:

(a) using or accessing weapons or explosives;
(b) participating in training in the use of weapons or explosives;
(c) possessing or accessing material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.

8614 – Notify travel
The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days
before undertaking the travel.

8616 – Notify contact with certain individuals or organisations

(1) The holder must notify Immigration of the details of any contact with any individual who is known by the holder to have been charged with, or convicted of, a criminal offence.

(2) Subclause (1) does not apply to:

(a) contact in the course of attending a therapeutic or rehabilitative service; or

(b) contact in connection with legal proceedings or legal advice or

(c) incidental contact.

8620* – Abide by specified curfew

(1) The holder must, between 10pm on one day and 6am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2) If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8 hours apart.

(3) in this clause:

Notified address for a holder for a particular day or days means any of the following:

(a) Either:

(i) the address notified by the holder under condition 8513; or

(ii) if the holder has notified another address under condition 8625 – the   last address so notified by the holder.

(b) an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;

(c) if, for the purposes of this paragraph, the holder notified Immigration of an     address for that day or those days no later than 12 pm on the day before that day     or the earliest day of those days (as the case may be) – that address.

*Your visa is subject to the above condition for a period of 12 months from the date of grant.

8621* – Monitoring device

(1) The holder must wear a monitoring device at all times.
(2) The holder must allow an authorised officer to fit, install, repair or remove the following:

(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.

(3) The holder must take any steps specified in writing by the Minister and any other reasonable steps, to ensure that the following remain in good working order:

(a) the holder’s monitoring device;

(b) any related monitoring equipment for the holder’s monitoring device.

(4) if the holder becomes aware that either of the following is not in good working order;

(a) the holder’s monitoring device;

(b) any related monitoring equipment for the holder’s monitoring device;

The holder must notify an authorised officer of that as soon as practicable.

*Your visa is subject to the above condition for a period of 12 months from the date of grant

8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.

8625 – Notify changes in personal details
The holder must notify the Minister of any change in the following:

(a) the holder’s name;
(b) an address of the holder;
(c) a phone number of the holder;
(d) an email address of the holder;

within 2 working days after the change occurs.