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

FRLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 58 (11 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/7760
Re:FRLH
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Damien O'Donovan
Date of Decision: 11 January 2022
Date of written reasons: 14 January 2022
Place:Canberra

The reviewable decision dated 15 October 2021 is set aside.
The application is remitted to the respondent for determination on the basis that the grant of the visa is not prevented by section 501(1) of the Migration Act 1958 (Cth) (Act).
……………….[sgd]…………………..
Senior Member Damien O'Donovan
Catchwords
MIGRATION - visa refusal - Applicant failed character test under s 501(6)(a) - previous finding of protection obligations under s 36(2)(a) - delegate subsequently exercised discretion to refuse visa under s 501(1) - whether Applicant fails character test under s 501(6)(a) - whether discretion to refuse Applicant’s visa should have been exercised - considerations weigh in favour of non-exercise of discretion to refuse - decision under review set aside and substituted.
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 53A, 53N
Migration Act 1958 (Cth) ss 36, 65, 411, 499, 500(1), 501(1), 501(6)(a), 501(7)(d), 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 ss 197D, 197C, 198.
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
FYBR and Minister for Home Affairs [2019] FCAFC 185
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Damien O'Donovan
14 January 2022

The applicant is a 35-year-old citizen of Pakistan. He arrived in Australia in 2016 on a student visa. The applicant was not successful in completing any studies, but he gained employment with 7/11 and Coles and subsequently began working as an Uber driver.
On 1 April 2018, while working as an Uber driver and just prior to the expiry of his student visa, the applicant engaged in acts of indecency in relation to one of his passengers. She reported the matter to the police later that day and the applicant was charged with a number of criminal offences.
Shortly after the charges were laid, the applicant secured a bridging visa pending the hearing of the criminal charges, but he was unsuccessful in securing a further student visa. He subsequently applied for a protection visa.
On 20 November 2018, the applicant was convicted in the Local Court of New South Wales at Parramatta on two counts of assault with an act of indecency. He was sentenced to serve 9 months in prison with a non-parole period of 5 months. An appeal was lodged with the District Court of NSW, but it did not result in any change to the sentence imposed.
There is a dispute about whether the sentence imposed was for an aggregate period of 9 months in relation to both charges or whether the applicant was sentenced to 9 months on each count with the sentences to be served concurrently. I consider that issue further below as it is significant in determining whether or not the applicant passes the statutory character test which enlivens the discretion to refuse him a protection visa. If the applicant does not pass the character test, then I must consider whether the discretion to refuse him a visa provided for by section 501(1) should be exercised.
Following his release from prison on 19 April 2019 the applicant was taken immediately into immigration detention. On 3 May 2019, the applicant applied for a protection visa under the Migration Act 1958 (the Act). The Minister’s delegate did not accept the applicant’s claims as credible and found that he was not a refugee. The delegate also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, the applicant would suffer significant harm.[1]
[1] G Documents, 133, 2.
On 8 April 2020, the applicant made an application for review of that decision to the Migration and Refugee Division of the Administrative Appeals Tribunal. On 7 September 2020, the Tribunal relevantly found that the applicant is a person in respect of whom Australia has protection obligations because he meets the definition of a refugee.[2] The application was remitted to the Minister for further consideration of the visa application.
[2] Migration Act 1958 (Cth) s 5H.
In his decision dated 15 October 2021, the Minister’s delegate made a decision refusing to grant the applicant a protection visa. The delegate determined that, as a result of the indecency convictions and sentences, the applicant had a substantial criminal record and did not pass the character test. The delegate decided to exercise his discretion under section 501(1) of the Act to refuse to grant the applicant a protection visa.
The applicant sought review of that decision in the General Division of the Tribunal. The matter was listed for 2 days on 21 and 22 December 2021.
The applicant attended the hearing by video link from Perth Immigration Detention Centre. The applicant’s representative and the respondent’s representative both appeared using videoconferencing technology. All other lay witnesses gave evidence by telephone. The applicant also called Forensic Psychologist Dr Leon Turnbull. He gave evidence using video conferencing technology.
The Tribunal also had regard to the following material:
·Section 37 G-Documents (Exhibit 1)
·Tender Bundle filed by Respondent (Exhibit 2)
·Tender Bundle filed by Applicant (Exhibit 3)
·Tender Bundle in reply filed by Applicant (Exhibit 4)
·Email correspondence and attachment from Jon Papalia to Paramatta Local Court dated 14 December 2021 (Exhibit 5)
·Local Court of NSW advice of Court Result dated 15 December 2021 (Exhibit 6)
·District Court of NSW Court Order Notice 23 December 2021 (Exhibit 7)
·Local Court of NSW Court Order Notice 16 December 2021 (Exhibit 8)
LEGISLATION
Pursuant to section 65 of the Migration Act, if the Minister is not satisfied of the matters specified in paragraph 65(1)(a), he must not grant a visa. One of the matters he must be satisfied of is that the grant of the visa is not prevented by section 501.
Subsection 501(1) gives the Minister a discretion to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) states that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 500(1) provides for applications for review of decisions made by delegates pursuant to section 501 to be made to the Tribunal in the following terms:
(1) Application may be made to the Administrative Appeals Tribunal for review of:
(a) …
(b)Decisions of a delegate of the Minister under section 501 (subject to section (4A); .
MINISTERIAL DIRECTION NO. 90
Where the discretion to refuse to grant a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion. However, the exercise of the discretion is regulated by Ministerial Direction No 90 (the Direction). The Direction was made under section 499 of the Migration Act. That provision empowers the Minister to give written directions to a person or body having functions or powers under the Act. Any direction made must be applied by all decision-makers, including the Minister’s delegates and the Tribunal, but does not apply to the Minister himself.[3]
[3] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. The Direction commenced on 15 April 2021 and by its terms revoked on the same date Direction 79 - the previous direction which dealt with section 501.[4]
[4] Direction, cl 2-3.
The Direction specifies considerations that must, if relevant, be considered in making a decision under section 501 or section 501CA of the Act. These are identified in Part 2 of the Direction. The following principles in paragraph 5.2 of the Direction provide a framework for decision makers:
(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)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.
(3)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.
(4)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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of Part 2 of the Direction provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community;
(b)Family violence committed by the non-citizen;
(c)The best interests of minor children in Australia affected by the decision; and
(d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
·Extent of impediments if removed;
·Impact on victims; and
·Links to the Australian community, including:
i.Strength, nature and duration of ties to Australia; and
ii.Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ This does not however preclude the Tribunal from giving an ‘other’ consideration the equivalent or greater weight than a primary consideration.[5]
[5] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
ISSUES FOR DETERMINATION
The decision to refuse the applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the applicant passed the character test pursuant to section 501(6) of the Act. The applicant contends that I should be satisfied that he does. As such, the first issue for determination is whether the applicant satisfies the character test.
If I am not satisfied that the applicant satisfies the character test, the second issue for determination is whether I should exercise the discretion under section 501(1) so that a grant of a visa under section 65 is prevented.
FACTS
Fact finding principles
Set out below are my findings of fact. Where any finding is controversial, I have cited the evidence upon which the finding is based.
In the course of submissions, a question was raised about how the Tribunal should approach documentary evidence which is in conflict with sworn evidence. It is appropriate to say something about that issue before proceeding to make findings of fact.
The Tribunal is not bound by the rules of evidence and consequently often receives evidence of differing quality. The Tribunal must make a decision about what weight to give the different kinds of material which it receives.
In decisions concerning the cancellation of visas on character grounds it is common for the Tribunal to receive into evidence reports of events recorded in documents prepared by the police, corrections officers, and immigration officials with responsibility for immigration detention. Incidents described in these documents are often very relevant to the assessment which the Tribunal must make. The applicant however may give sworn evidence on the subject matter of the reports giving a very different description of the facts recorded in the documents.
The question that arises for the Tribunal is what weight it should put on the differing accounts and whether the Tribunal can or should treat oral evidence which is inconsistent with an official document as undermining of the applicant’s credibility. In most cases the documentary material is not verified on oath or affirmation and has not been tested by cross-examination. The material does however come from an institutional source (such as the police) where one can reasonably expect that efforts have been made to ensure that what is recorded is truthful and accurate.[6]
[6] Note that this discussion is not considering the specific issues that arise in relation to sentencing remarks concerning the sentence which underpins the exercise of the character discretion.
The account given by the applicant on the other hand has been given under oath or affirmation and has been the subject of cross-examination thus representing the gold standard for evidence in the Australian legal system. There are however significant incentives for the applicant to, at the very least, gild the lily, given that an unfavourable decision could result in deportation or indefinite detention.
How to weight these different types of evidence appropriately, without reaching conclusions outside the bounds of reasonableness, or breaching the requirements of procedural fairness is not an easy task in circumstances where adverse material arrives very close to the hearing date and the Tribunal must make a decision within the statutory time limit of 84 days from the date of the reviewable decision. The issue was particularly acute in this case. In the course of the hearing of this matter a significant difference emerged in the account of the crime given by the applicant and the account recorded by police in the incident report dated 1 April 2018 and in the Fact Sheet that would have been relied upon in the event that the applicant pleaded guilty. The statement from the victim taken by police was more comprehensive than the sentencing magistrate’s remarks.
The applicant was found guilty at a contested hearing. Obviously, the victim’s claims were accepted over the applicant’s denials but there were matters of detail which the applicant continued to deny in his evidence to the Tribunal. In particular, it was not disputed that the applicant in the course of the Uber trip turned off the Uber app and departed from the most direct route to his victim’s destination. The applicant sought to give both these acts a benign character in the course of his evidence to the Tribunal. The police reports give a very different picture suggesting that those actions were taken to allow the applicant to get to quiet streets and engage in the acts of indecency.[7]
[7] Exhibit 2, 87-91.
These matters were not covered in the sentencing remarks included in the G Documents.
The applicant submitted that it would be unsafe to make findings based on material contained in the police reports that were inconsistent with the oral evidence given by the applicant. While the submission was expressed in terms of the findings being ‘unsafe’, the clear implication was that it would involve an error of law to do so – either on the grounds of unreasonableness or because doing so would involve a breach of procedural fairness. The applicant submitted that at the very least the principles espoused by the High Court in Briginshaw v Briginshaw (subject to the modification on how they are applied in a Tribunal as enunciated in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93) would be engaged thus rendering any finding based on the police records inappropriate in circumstances where the finding would be seriously adverse to the interests of the applicant and contrary to the sworn evidence which he gave. The practical effect of accepting that submission would be that unless matters recorded in police reports (or the records concerning the applicant’s conduct in prison or immigration detention) which are adverse to applicant were accepted in cross-examination by the applicant, then at most they could support an adverse finding on credit, but could not sustain affirmative findings of fact.

While I accept that caution should be taken in making affirmative findings of fact based on documents where the information is unverified on oath and cannot be the subject of cross-examination, I do not accept the proposition that in this case it would be unsafe to make positive factual findings based on that material. In this matter, the findings of the sentencing judge are consistent with the victim’s statement as recorded by the police, and the victim’s evidence was accepted at trial as sufficient to found a conviction. There is no reason to approach the material with scepticism.
Given the statutory framework within which the Tribunal operates it is clearly not Parliament’s intention that the provenance and content of every document relied upon by the Tribunal must be established to the standards demanded in the civil and criminal courts. Accordingly, consideration can be given to documentary evidence which supports particular factual conclusions even if that material would not, without more, be admissible in a court.
Where documents provide an account of events without the author of the account giving evidence, they would normally be given less weight on account of that fact. But, unless it would be unreasonable to prefer the version of events contained in an unverified document over the sworn account of another witness, then there is no legal rule which prevents the Tribunal from drawing conclusions based on a tendered document even in preference to the evidence given by a person who has given evidence under oath or affirmation.
Noting the Tribunal’s objective in section 2A of the Administrative Appeals Tribunal Act 1975 to provide a mechanism of review that is fair, just, economical, informal and quick and that the Parliament has imposed a strict time limit on review in visa cases such as this one, it would be inconsistent with the Tribunal’s objectives if the Tribunal imposed a de facto best evidence rule before giving weight to documentary material of known provenance just because it is not supported by a statutory declaration or sworn statement or the ultimate author of its substantive content was not made available for cross-examination.
I am however conscious that in making decisions about an applicant’s visa, the consequences are very serious and are potentially more far reaching than the criminal conviction which prompted the decision. In the present circumstances, provided I consider that the applicant has been given fair notice to contest any conclusions which can be drawn from the documentary material before me, then I am prepared to use that material to make factual findings.
The applicant’s background – work, social and criminal history
The applicant was born in Multan, Pakistan in 1986. He is married with two children who are six and eight.[8] He arrived in Australia on a student visa on 8 November 2015.
[8] G Documents, 36.
Between 2005 and 2006 the applicant completed a Bachelor of Journalism at Bahauddin Zakariya University. From 2006 the applicant worked as a police officer for the Punjab police. Between 2008 and 2010 the applicant completed a Master of Journalism at Bahauddin Zakariya University. Between June 2011 and December 2012, the applicant lived in the United Kingdom. While there he completed a post-graduate diploma in business administration.
In March 2013 the applicant returned to Pakistan and got married.
In 2013 the applicant started working as an undercover police officer in the Punjab police and continued in that position until 2015.
In 2015 the applicant moved to Australia on a student visa. His wife and two children remained in Pakistan. He had a number of relatives living in Australia including an uncle who has New Zealand and Pakistan citizenship and resides in Australia.[9]
[9] G Documents, 45.
It has been accepted by a differently constituted Tribunal, in the context of reviewing the applicant’s protection claims, that while the applicant was in Australia, his older brother murdered a prominent member of an important family in Pakistan.[10] Following the murder the victim’s family began to harass the applicant’s family. The applicant’s brother, who was responsible for the murder, then disappeared. The applicant himself received threats via text message. Later, the applicant’s other brother returned to Pakistan from Dubai and suffered adverse treatment. On the basis of these findings the Tribunal in the context of a protection visa application found that there was a real chance that the applicant would be targeted on return to Pakistan by members of the prominent family or people associated with them including the army or corrupt police officers. I adopt those findings.
[10] G Documents, 141.
While these events were taking place in Pakistan, the applicant was studying and working in Australia. His work included working as an Uber driver.
On 1 April 2018 at about 4am the victim of the applicant’s crime requested an Uber service using the Uber app. When the applicant arrived, the victim got into the back seat of the vehicle and the applicant started driving her towards her destination which was a significant distance away. The accused and victim initially started with small talk and then the accused started to speak to the victim on sexual topics.[11] There is no dispute that at some time during the journey the applicant pulled over and his victim moved from the back seat to the front seat. It is also not disputed that during the course of the trip the applicant turned off the Uber app. It is not disputed that during the course of the trip the applicant left the motorway he was travelling on and ended up on a route which was not on the way to the applicant’s destination.
[11] Exhibit 2, 87.
At some point on the trip, the applicant took the victims hand while she was sitting in the front seat and placed it onto his penis. He had unbuttoned his pants at this point and his penis was exposed. He then touched the applicant on her genital area. He did so without the victim’s consent and these are the acts of assault with acts of indecency which became the subject of criminal charges.
When the victim was dropped off she reported the matter to the police.
When the applicant was questioned by police he denied any wrongdoing and gave a version of events which suggested that the victim had been sexually aggressive towards him and that he had resisted her advances.[12]
[12] RTB p 88.
The applicant was charged with two counts of assault with acts of indecency.
The applicant pleaded not guilty and the matter went to trial. The victim gave evidence at trial. The applicant was convicted on both charges and sentenced to nine months imprisonment with a non-parole period of five months for each count.[13]
[13] G Documents, 28.
The version of events accepted by the sentencing magistrate was as follows:
… but there were two findings of fact, and
the first was that under 61L, he placed the victim's hand on his penis. And the
second allegation that was proved is that he touched her in her genital area.
At that time, he was an Uber driver; she was a passenger. She came from
a different capital city, she didn't know where she was during the journey. He
has deviated from the best route and in fact the Uber app has been turned off.
So she did not know where she was, she did not know where she could get
out, she was forced to move from the back seat to the front seat, and she was
subjected to a journey of some kind when those events occurred. So he is in a position of trust, he is performing a public transport duty. She is a
passenger from - unfamiliar with Sydney, and then there is not one count of act
of indecency, there are two, both of which involved direct touch on genitalia.
[14] G Documents p 30.
She is a young woman that otherwise just wanted to go home from the city, from Strathfield to I think it was Winston Hills or Castle Hill - Kellyville Ridge..[14]
A dispute has arisen as to whether the sentence the applicant received amounted to two sentences of nine months to be served concurrently or whether the applicant received an aggregate sentence for both counts totalling 9 months. As a consequence, it is important to record in some detail what is known about the sentence imposed.
In sentencing remarks, the sentencing magistrate stated:
In my view, an appropriate sentence in relation to both matters, dealing with them together, because I do not think there needs to be accumulation, is a sentence of nine months gaol, to commence today 20 November and conclude on 19 August next year.[15]
[15] Ibid, 34.
The records of the NSW Local Court record two separate offences with a sentence of 9 months being imposed in relation to each conviction.[16] That sentencing structure is reflected in the applicant’s National Criminal History Check.[17] It is also reflected in the District Court Court Order Notice dated 23 December 2021.[18]
[16] Exhibit 6 p 2 and Exhibit 8
[17] Exhibit 1 p 28.
[18] Exhibit 7.
According to the sentence assessment report, the applicant denied the offences even after his conviction.[19] His Honour noted that the applicant did not display remorse or contrition at all.[20] As late as April 2019 the applicant continued to deny his criminal conduct.[21]
[19] Exhibit 2, 122.
[20] Exhibit 2, 34.
[21] RTB p 110.
The applicant was released from prison on 19 April 2019 and taken into immigration detention.[22]
[22] G Documents, 62, 91.
On 3 May 2019 the applicant applied for a protection visa. The application was initially refused by a delegate on the ground that the applicant did not meet the statutory criteria. However, on 7 September 2020 the Migration & Refugee Division of the Tribunal found that there was a real chance of serious harm befalling the applicant from his brother-in-law’s family, corrupt army and police officers and members of the Islamic community in Pakistan. The application was remitted for reconsideration with a direction that the criterion in section 36(2)(a) of the Migration Act was satisfied.
On 17 March 2021 the applicant was invited to comment on the Minister’s intention to consider refusal of his protection visa application under s 501(1) of the Migration Act. The applicant provided a personal circumstances form in response dated 1 April 2021.
In this Personal Circumstances Form, the applicant expressed regret, remorse and shame for his crimes in the following terms:[23]
I did a biggest sin and mistake of my life that I did a crime, I regret every day on my act which I did. I am very remorseful. I have no words to explain my remorse, regret and ashame (sic) which I feel everyday and still I am suffering. I learned a lot now. I can say really sorry and forgive me I repaint my life. I want to start a new life with my new beliefs.
[23] G Documents, 86.
The applicant repeated these sentiments in a statement dated 30 November 2020, where he said:
There is no reason or justification for my offending. It was simply wrong. I am remorseful for all the pain and suffering I caused to the victim and her family. I have learnt my lesson to not repeat my actions in the future.
In relation to his risk of reoffending, the applicant wrote in his Personal Circumstances Form:[24]
I understand the harm I have caused to the victim and her family and my family and I take full responsibility for that. I want to have a future which is offence free and according to the law. I neve ever think about reoffend in my life. [sic][25]
[24] Ibid.
[25] G Documents p86.
On 15 October 2021 the delegate found that the applicant had a substantial criminal record and exercised the discretion to refuse his application for a protection visa. The applicant was notified of the delegate’s decision on 19 October 2021 by email and an application was made to this Tribunal within the statutory timeframe.
The following additional matters are known about the applicant’s circumstances.
The Applicant’s Family
The applicant has a family in Pakistan. He speaks with his parents and his wife and children daily by phone.[26] He has two children, a son and a daughter. His daughter is aged 7 and his son is aged 5. In his Personal Circumstances Form, the applicant described his relationship with his children as follows:[27]
My kids are my whole world and they are my life. Everyday I talk to them on video call, every morning I awake up with my daughter voice and face and sleep with their call as well. Me and my daughter are very close to each other. She kiss me on video call everyday and share her all day activities that what she did.
And my son is younger than her he also talk to be and ask me when we were met. Me and my kids are really close to each others. They are my lifeline. My daughter can understand me because he is clever and sensible. She say my father is an ideal for me. I teach her English words and sing the songs and I enjoy my both kids over the call. [sic]
[26] G Documents, 46.
[27] G Documents, 82.
In the Form, the applicant wrote:[28]
I want to give them a bright future and a good life under my presence as a responsible father. Already they spent five years without me. They really need me and I need them as well. If I get refused they will suffer more hard life without father. At this stage of their lives they really need the father. Their childhood and future can destroy. [sic]
[28] Ibid.
The applicant has some family in Australia, but his closest family connections are in Pakistan.
The Applicant’s religion
The applicant was a Sunni Muslim when he arrived in Australia on a student visa. However, during his time in prison the applicant was exposed to Christianity. He has not been baptised nor adopted Christianity publicly, but he says that he is drawn to it and will explore becoming a Christian more fully when he feels safe to do so. He does not feel safe expressing outwardly Christian beliefs while he is in detention. He has informed his wife of his Christian beliefs and she is upset with this change in his belief system. If returned to Pakistan, the applicant says he is afraid of being seriously harmed or killed because of his Christian beliefs.[29]
[29] G Documents, 94.
The Tribunal which considered his protection claims was satisfied of the genuineness of the applicant’s interest in becoming a Christian. I adopt that finding.
The applicant’s work, study and social history
The applicant has studied in Pakistan, the UK and Australia. In Pakistan he worked as an undercover policeman. Between November 2015 and April 2018 the applicant lived in a few different share houses with members of the Niazi tribe. In that time the applicant studied, played cricket and did volunteering with a community radio station. The applicant worked as an Uber driver, but also did work for a 7/11, Coles and as a security guard. After the charges were laid, work and study became more difficult, and his principal social outlet was playing cricket at the Maryland Cricket Ground.
Mental and physical health
The applicant is relatively young and could be described as in reasonable health.
He does have heart disease which required surgical intervention.[30]
[30] G Documents, 87.
Since the surgery the applicant takes a range of medications to manage his condition:[31]
[31] G Documents, 88.
His mental health has deteriorated while he has been in detention. Including experiencing trouble sleeping, concentrating and remembering things. The Applicant had also experienced panic attacks and nightmares.[32]
[32] Applicant’s statement dated 7 December 2021 p 4.
Courses and programs in gaol
For three of the five months the applicant was in gaol, he completed The Prisoner’s Journey – A program of Prison Fellowship.[33] He stated in his Personal Circumstances Form that the course ‘changed [his] life in a positive way.’ In immigration detention the applicant has completed two online courses – Sexual Harassment and Compliance, and, Workplace Sexual Harassment in the #MeToo era.
[33] G Documents, 96.
Further evidence of remorse
The applicant gave evidence to the Tribunal and expressed remorse in the following terms:
…I told the police that the passenger was doing all of the things that she said I had done. That was not true…Throughout my criminal law matters, I did not accept responsibility for what I did. I regret not accepting responsibility for my actions…One of my biggest regrets, including committing this crime, is that I didn’t accept responsibility for it and plead guilty. This is because of the impact that pleading not guilty had on the woman who I assaulted and her family and friends, my family and myself…I should have accepted my crime and should have pleaded gulty right away…I feel very sad, sorry and ashamed for what I did…I am very sorry for the impact that I have had on the person I assaulted.[34]
CONSIDERATION
[34] Statement of applicant dated 7 December 2021.
Issue 1: Character Test
Under section 501(1), the Minister (and the Tribunal standing in his shoes), may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.
A person does not pass the character test if the person has a substantial criminal record. A person has a substantial criminal record if the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
It is common ground that the applicant was convicted on two separate charges of indecent assaults. The only contest is whether the applicant was sentenced to a single aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) or was given two sentences to be served concurrently under section 55.
The words used by the sentencing magistrate were not entirely clear on this issue. However, there is no ambiguity in the Court Order Notice issued by the NSW Local Court. Two separate sentences are recorded as having been imposed, and there is no suggestion in the Court Order Notice that the judge imposed only a single sentence in relation to both charges.
Two separate sentences were confirmed on appeal.
In those circumstances I am satisfied that the applicant was sentenced to two or more terms of imprisonment where the total of those terms was 12 months or more. Accordingly, I am satisfied that the applicant has a substantial criminal record and does not pass the character test.
Consequently I must consider how the discretion in section 501(1) should be exercised.
Issue 2: Discretion to grant visa
In considering whether to exercise the discretionary refusal power, the Tribunal must comply with any Ministerial direction issued under section 499 of the Migration Act. The Minister has issued a direction under that provision. The relevant direction is Direction 90. Any exercise of the discretion must comply with the terms of the Direction.
Direction 90 relevantly provides as follows:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
5.2 Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(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) 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.
(3) 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 measureable risk of causing physical harm to the Australian community.
(4) 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4. (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
6. Exercising discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
(7) Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other considerations.
(8) The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
(9) Other considerations which must be taken into account if relevant are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
i.Strength, nature and duration of ties to Australia;
ii.Impact on Australian business interests.
89.     This is a non-exhaustive list of relevant considerations. The applicant has made submissions that the following considerations are relevant:
(a) The future contributions the applicant will make to the Australian community;
(b) The costs of immigration detention;
(c)   The best interests of the applicant’s minor children;
(d) The anomaly created by separate sentences served concurrently.
90.     All of these matters have been considered in determining how the discretion should be exercised.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community

Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     …
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The applicant has been found guilty of two separate indecent assaults the nature of which I have described elsewhere in these reasons. The offending is very serious.
The applicant has acknowledged through his counsel that the offences involved the violation of the bodily integrity of another person without permission.
The offending is appropriately described as very serious. The female victim who was in a vulnerable position, being the sole passenger of an Uber which the applicant was driving, was subjected to a violent sexual crime. While the level of violence was at the bottom end of the scale involving minimal compulsion and no physical injuries, it is appropriate to classify the crime as violent.
In these circumstances the criminal offending is of a very serious nature and it weighs in favour of refusing to grant the applicant a visa.
(b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
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 harms 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.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed 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)     the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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).
…
If the applicant were to offend again it is likely it would take the form of an opportunistic indecent assault which is how I would characterise the applicant’s prior offending. This offending falls at the very bottom end of the range of violent, sexual offending.
I assess the likelihood of the applicant re-offending as low. I am satisfied that the applicant’s acknowledgment of guilt and remorse is genuine although it did come very late. The applicant was still maintaining that he was innocent in a bridging visa interview on 30 December 2019.[35]
[35] RTB p 46.
It was not until 18 November 2020, in circumstances where the applicant understood that failure to acknowledge his guilt could have adverse consequences for him administratively[36] that the applicant acknowledged his guilt.[37] Since then the applicant has made regular statements admitting his guilt and declaring his remorse including in his evidence to this Tribunal. While the lateness of the acknowledgement and the circumstances which triggered it are a cause for scepticism, having seen the applicant give evidence I am satisfied that his remorse is sincere, and I accept it as genuine.
[36] Ibid.
[37] RTB p 62.
I am fortified in these conclusions by the evidence of Dr Turnbull, a forensic psychiatrist. Dr Turnbull assessed the applicant’s likelihood of re-offending as in the low range. The reasoning provided by Dr Turnbull for this assessment is cogent. I note that earlier assessments put the applicant in a higher range. However those assessments were made before the applicant’s full acknowledgement of his guilt.
In these circumstances, this factor weighs heavily against the grant of a visa to the applicant, but not so heavily that it could not be outweighed by other considerations.
Primary Consideration 2 – Family violence committed by the non-citizen
The applicant has no history of family violence. Accordingly, Primary Consideration two is not relevant.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
The applicant’s children both reside in Pakistan. There were no other minor children identified as relevant to my consideration. Accordingly, Primary Consideration three is not relevant.
Primary Consideration 4 – The expectations of the Australian community
There is some uncertainty about the way in which this consideration should be applied notwithstanding that a similar formulation in an earlier direction was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR). In FYBR, the two judges who formed the majority, wrote separate judgments which reached similar conclusions, but they expressed those conclusions in slightly different ways.
Justice Charlesworth identified two expectations as being expressed in the relevant part of the direction as it then stood. The first is an expectation that non-citizens will obey the law. Given his criminal offending, this expectation of its nature, weighs against the applicant.[38] The second expectation deals with what the Australian community expects will be the consequences for a non-citizen who has fallen foul of the first expectation.[39] In relation to this second expectation her Honour noted:
…the text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[40]
[38] See [69] – [70].
[39] See [72].
[40] At [75]-[76].
Justice Stewart expressed his understanding of the relevant direction in the following terms:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
• non-citizens will obey Australian laws when in Australia;
• it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
• in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.[41]
[41] At [100].
The key point to note is that the expectations of the Australian community are exhaustively set out in the direction, they generally weigh against an applicant, but ultimately the consequences for a person of failing to behave in accordance with the expectations of the Australian community so far as an applicant’s visa is concerned is a matter for the decision maker.
Since FYBR was decided, the direction under consideration has been replaced twice. Direction 90 is now the operative direction. There is no material difference between the two in terms of how the normative expectation that non-citizens will obey the law is expressed. However, what is described by Justice Charlesworth as the second expectation, which concerns the consequences of breaching the first expectation, has been significantly altered. Direction 90 expressly states that the Australian community expects that non-citizens will obey the law when they are in Australia and also ‘expects the Government not to allow such a non-citizen to enter or remain in Australia’.[42]
[42] Direction para 8.4(1).
To adapt the language of Justice Stewart, it can no longer be said that the second deemed expectation is that it may be appropriate to refuse a visa application where a non-citizen has breached, the second deemed expectation is that it is appropriate to refuse a visa application where a non-citizen has breached the expectation that they will obey the law.
Further, the third expectation identified by Justice Stewart has been modified.
The relevant paragraph[43] in the Direction makes clear that in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that the person should not be granted a visa. The paragraph goes on to make it clear that the Australian community expects that a decision maker should refuse entry or cancel a visa if the character concerns arise from specific kinds of conduct including family violence, causing forced marriage, serious crimes against women etc.
[43] Paragraph 8.4(2).
This represents a significant hardening of how the expectations of the Australia community should be understood since FYBR. The expectation is now that it is appropriate to refuse a visa to a person who has broken the law and that in relation to certain categories of conduct the discretion should be exercised in an adverse way.
The amended provisions do however retain the words which Justice Charlesworth relied upon to found her conclusion that there is a class of cases where it is not appropriate to act in accordance with specified community expectation[44] thus confirming the capacity of decision makers to determine matters inconsistently with the expectation. Even in the absence of the retention of those words, I am satisfied that how the consideration is applied remains discretionary in at least two ways.
[44] The phrase ‘visa…refusal.. may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted …a visa’ is relied upon by Justice Charlesworth in the last sentence of paragraph [75] of her judgment as the textual basis for finding a discretion left to the decision maker in certain cases.
First, the principles set out in 5.2(4) of the Direction make it clear that some tolerance of criminal conduct can be shown by a decision maker depending on the particular circumstances of the case. Consequently, how heavily this consideration weighs against an applicant can be ameliorated by factors such as a lengthy period in Australia without disobeying the law.
Second, the decision the Tribunal is required to make inevitably involves the balancing of each of the relevant considerations. Even if the expectation of the Australian community is that a person who breaks the law will be refused a visa, that consideration can still be outweighed by other consideration.
Before considering the application of these principles in the present case, it is necessary to deal with one further matter that is raised in the applicant’s submissions.
The applicant contends that there are a number of expectations of the Australian community which can be considered by the Tribunal, and if accepted would diminish the extent to which this consideration should weigh against the applicant. I will set out the submission in full so it can be clearly understood:
That the expectations of the Australian community may weigh against the Applicant does not end the analysis. The Tribunal is required to consider the extent or degree of weight to be given to the expectations of the community. In the present case, the Applicant submits that the weight to be given to the deemed expectations of the Australian community should be significantly moderated on account of other deemed, or attributed, expectations of the Australian community:
60.1 First, the expectation of the Australian community, expressed through Australia’s commitment to the international treaties enshrining our non-refoulement obligations, that Australia will protect those who are fleeing persecution;
60.2 Second, the expectation of the Australian community, expressed through Australia’s commitment to international treaties prohibiting indefinite detention, that Australia will not detain people indefinitely;
60.3 Third, the expectation of the Australian community, expressed through the sentence imposed upon the Applicant by the criminal sentencing court (recalling that one role of a criminal sentencing court is, through the imposition of a just punishment, to express the community’s censure of an offender’s conduct), that the Applicant’s offending was deserving of a total effective term of imprisonment of nine months (not 12 months or more); and
60.4 Fourth, the ‘second expectation’ of the Australian community, expressed through Direction 90 as considered in light of the statements in FYBR referred to above, that each case will be considered in light of its individual circumstances. Here, that requires consideration of all his circumstances, including: the Applicant has no other prior criminal history; he has been assessed by a suitably qualified expert as a low risk of reoffending; he is highly qualified and capable of contributing to the Australia community; and he is remorseful and has shown insight into his offending. The Australian community expects that these positive matters in an Applicant’s favour will be considered when determining the ultimate weight to be given to Direction 90 cl 8.4.
In my assessment those submissions misunderstand how this consideration should be applied.
FYBR makes clear that the notion of the expectations of the Australian community are determined by the executive government and stated conclusively in the Direction. It is not open to argument what the expectations of the Australian community are and they are not deemed from any other source than the Direction itself. They are what the direction says they are. As Justice Stewart stated in respect of Direction 65, ‘the Australian community has only three relevant expectations’.[45] Each was derived from the text of the direction.
[45] Paragraph [100].
This limit on what the expectations are is integral to the application of the discretion. If an applicant can add expectations, then those matters will have greater weight because they now form part of the expectations of the Australian community. Accordingly, strict application of the deemed expectations is integral to the proper balancing of considerations.
Having said that, there is scope for some discretionary modification of the weight to be given to the expectations of the Australian community in the manner described in paragraph ‎116 above. That may be what the applicant was submitting should happen in this case. If it was, he has gone about it in the wrong way. Changes in weight to be given to the consideration might be achievable by pressing arguments grounded in the principles and objectives of the Direction. It cannot be achieved by suggesting that there are other expectations which I can deem the Australian community to have which favour the applicant.
For these reasons I do not deal with the four matters raised in the applicant’s submissions as expectations of the Australian community. I deal with them instead as other considerations at the end of these reasons.
The net result is that this consideration, as now formulated in Direction 90, will always weigh against exercising the discretion in a manner favourable to an applicant who has disobeyed the law. There cannot be much doubt that that is what the Minister intended when Direction 90 was made in the terms that it was.
There is no basis which I can identify having regard to the principles specified in the Direction which would diminish how adversely this consideration applies to the applicant. The applicant has not been in Australia for a long period such that the Australian community might expect that he be dealt with more leniently. His crime was very serious and it was directed against a woman. This consideration weighs heavily against a favourable exercise of the discretion.
OTHER CONSIDERATIONS
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are however ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in relation to an earlier iteration of the Direction in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations

On 7 September 2020, the Migration and Refugee Division of the Tribunal found that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act.[46]
[46] G Documents, 148.
When regard is had:
·to that Tribunal finding;
·the applicant’s fears about what will happen to him if he returns to Pakistan; and
·the current structure of the Migration Act concerning the circumstances in which a person can be deported once a protection finding has been made,
I consider it most unlikely that the applicant will be returned to Pakistan in the foreseeable future. This raises the spectre of the applicant being indefinitely detained.
The following concessions were made by the respondent in relation to the likely practical outcome if the applicant is denied a visa on character grounds:
“The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) has made amendment to the obligation to expel unlawful non-citizens under s 198 of the Migration Act.
Sub-section 197C(3) of the Migration Act now provides that s 198 does not require or authorise an officer of the Commonwealth to remove an unlawful non-citizen to a country if a “protection finding” (as defined in ss 197C(4)-(7)) has been made in relation to that person and country unless:
(a)The decision finding that the non-citizen engages protection obligations has been set aside;
(b)The Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding would be made; or
(c)The non-citizen requests voluntary removal.”[47]
“There is an extant protection finding within the meaning of s 197C(5)(a) of the Migration Act, there has been no decision under s 197D(2) that this finding no longer applies and the applicant has not requested his voluntary removal. Accordingly, at this stage, the applicant would not be able to be removed to Pakistan involuntarily. He may however, be liable to be removed to a third country or the Minister may at any time make a decision under s 197D (noting the review right in respect of the same).
If the Tribunal affirms the decision under review, the applicant would be prohibited from applying for another visa by virtue of ss 48A and 501E of the Migration Act, other than a Class WR Subclass 070 Bridging (Removal Pending) (temporary) visa. However, he could only do so on invitation.
Further, the Respondent may consider exercising his personal discretion under s 195A of the Migration Act to grant the Applicant a visa or he may consider exercising his personal discretion under s 197AB of the Act to make a residence determination in respect of the Applicant: Direction 90, [9.1(3)].42 A visa grant is not fanciful noting the Respondent might be prepared to grant a visa with a shorter term and more conditions than a permanent protection visa.
The applicant would be detained until one of the above options (in [47], [48] or [49] above) eventuate. The respondent accepts that there is no evidence of the alternatives being contemplated at this juncture.
The respondent therefore accepts that affirming the decision under review would mean that the applicant would be subject to indefinite detention in the sense identified in WKMZ v Minister for Immigration. That is, detention with no chronologically fixed endpoint and no endpoint ascertainable by the applicant. The respondent accepts, as it must, that the Tribunal must therefore give due consideration to this prospect.
The respondent accepts that substantial weight should be given to this factor (including the likelihood of detention with no chronologically fixed endpoint) in favour of granting the visa. However, this is not determinative – particularly where the protection and expectations of the community weigh strongly in the countervailing direction.”[48]
[47] RSFIC.
[48] ibid.
In these circumstances I am satisfied that the most likely practical outcome of any decision to refuse to grant a visa on character grounds is that the applicant will end up being indefinitely detained in Australia. I am confident that if he is denied a visa he will not be returned to Pakistan in breach of Australia’s non-refoulement obligations. In light of the danger which awaits him if he returns to Pakistan, I consider it unlikely that the applicant will choose to return voluntarily. There is no evidence before me that any discretion will be exercised to grant the applicant an alternative visa. Accordingly, I am satisfied that any period of detention is likely to be substantial, potentially spanning many months and potentially several years. I am satisfied that long-term detention will have a significant adverse effect on the applicant’s mental health which has already begun to deteriorate.
This consideration, whether properly characterised as the consideration identified in paragraph 9.1 of the Direction or as a separate consideration raised by the applicant, weighs heavily against the visa refusal.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The applicant has lived most of his life in Pakistan. He has a wife and children there and other relatives. He has an extensive work history there and speaks the language and understands the culture. If he returned to Pakistan, which I am satisfied would only occur if it was safe for him to do so, he would have no difficulty maintaining basic living standards and establishing himself there.
His heart disease is unlikely to be as well managed in Pakistan as it is in Australia. However, this particular consideration is not concerned with ensuring that the advantages of living in Australia are preserved for any returnee – it is only concerned with whether basic living standards can be maintained.
This consideration is largely neutral, and I give it little weight given that it depends upon a practical outcome I consider unlikely to eventuate.
Strength nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction provides as follows:
(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.
The applicant’s ties to Australia are surprisingly strong given the limited time he has been free in the Australian community. He has an uncle and two cousins living here. He has made friends since coming here and has played cricket for a cricket club. He has worked on a community radio show.
This consideration weighs against declining the applicant’s visa in light of the character concerns.
Impact on Victims
Paragraph 9.3 of the Direction provides as follows:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In the present case there is no information about the impact of the decision on victims or other members of the Australian community. This consideration is not relevant.
OTHER CONSIDERATIONS
The applicant identified the following other considerations:
(1) Future contributions to the Australian community:
The Applicant has put forward evidence, including from his friend and former colleague at a community radio station, that he is a person who has contributed to the community in this past and is capable of doing so again in the future. It is submitted that a decision to refuse the Applicant’s visa would deprive the Australian community of that contribution and this weighs against refusal. I am not willing to speculate about what contribution the applicant may make to Australia if he remains here. I do not consider that this adds anything to his claims for a favourable exercise of the discretion.
(2) Costs of immigration detention:
The Applicant has put in evidence the cost of immigration detention.[49] The applicant contends that if the Applicant’s protection visa is refused, it is likely that he will spend an extended (indefinite) period in immigration detention at a very substantial cost to the Australian community and that this matter weighs against refusal. I do not accept that submission. The costs of managing Australia’s visa programs are matters for the Commonwealth Government. The Minister has tools for managing the cost of detention by utilising various statutory options such as community detention or using his non-compellable powers. Neither the terms of the Direction or the scope and purpose of the Migration Act, suggest that the cost to the Australian Government of a particular visa outcome is relevant to whether a visa should or should not be granted. I do not consider it appropriate, indeed it may not even be lawful, to consider the cost of removing someone from the community as a basis for favourably exercising a discretion enlivened by concerns about their character.
(3) Best interest of the Applicant’s minor children (protection of family unity):
The applicant submits that while the Applicant’s minor children are not in Australia and cannot be considered under the relevant primary consideration within Direction 90, the applicant submits that it is plainly in the best interest of his children for the Applicant’s visa not to be refused. It is said that this is the only foreseeable way for the Applicant’s children ever to be reunited with their father in safety and that this is a matter engaging Article 3(1) of the United Nations Convention on the Rights of the Child, which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
I don’t accept that submission. The first premise of the submission which is doubtful is that the discretionary decision I have to make is one ‘concerning children’. While a broad interpretation was given to that phrase by the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, it was the particular characteristics of that decision and the children affected by it which rendered it one which amounted to a decision ‘concerning children’[50] In circumstances where the applicant has chosen to live separately from his children voluntarily and will continue to do so whether or not a favourable or unfavourable decision is made, I am not satisfied that the decision I am making is an ‘action concerning children’ in the sense in which that phrase is used in the Convention on the Rights of the Child. I am not prepared to speculate that any outcome makes it more or less likely that the applicant will re-unite with his children particularly in light of his desire to convert to Christianity and his wife’s reaction to that change in his beliefs.[51]
(4) Anomaly created by separate sentences served concurrently:
The applicant contends that if, contrary to the his earlier submissions, he was sentenced to two sentences of imprisonment – to be served concurrently – the result is that he fails to meet the requirements of the character test by a quirk of prosecutorial (charging) or judicial (sentencing) discretion. The applicant submits that in his case, it would have been open (and appropriate) for the Prosecution to have charged the Applicant with a single course-of-conduct assault – just as a person who punches another multiple times in a single event is not usually charged with multiple assaults – in which case he would have been sentenced to a single term of imprisonment of 9 months. Similarly, even if the applicant had been charged with two charges, it would have been open (and appropriate) for the sentencing judge to have imposed an aggregate sentence. In the present case, the criterion chosen by Parliament (by the deemed cumulation of sentences that were in fact concurrent) has produced a result that is ‘unfair’ and ‘irrational’. While this does not render s 501(7A) invalid, it does weigh in favour of a more lenient approach to a person in the position of the Applicant (who has only engaged s 501(1) by reason of a statutory fiction) as compared to another person (who has in fact been sentenced to a term of imprisonment of 12 months or more). This matter thus weighs against refusal.
For the most part, I do not accept this submission. It is entirely a matter for Parliament how it wishes to express the legal rules which activate the statutory discretion it confers on decision-makers. It is not for decision-makers to pass judgment on the fairness or rationality of the laws passed by Parliament. Further, to describe the legal rule set out in section 501(7A) as creating a statutory fiction is inapt. The applicant was found guilty of two charges and sentenced to 9 months in relation to each. The fact that he served those sentences concurrently does not alter the fact that he was sentenced to two terms of imprisonment and the total of those terms was 12 months or more. Section 501(7A) simply clarifies that the way in which a sentence is served, is irrelevant to determining the total months of the prison sentences.
It is however worth noting that there were two sentencing options open to the sentencing magistrate under the relevant sentencing Act and it is clear from his remarks that he never intended that the applicant would spend more than 9 months in jail. If he had chosen to give a single sentence for both charges rather than imposing two sentences to be served concurrently, the applicant would not be subject to the discretion to refuse his visa on character grounds. The practical result in terms of the time the applicant would have spent in prison would have been the same and the specific and general deterrent effect of the sentence would have been the same. This is not to suggest that there was anything irrational or arbitrary in the way in which the magistrate proceeded, but it serves to emphasise that the applicant’s conduct is at the bottom end of criminal conduct which engages this discretion. The conduct is very serious, but could very easily have been engaged in without visa consequences if a different charging or sentencing approach had been taken. In the present case, this is relevant at the very least to the weight that should be given to the nature and seriousness of the conduct consideration relative to the other considerations.
[49] Cost of Australia’s Asylum and Refugee Policies: A source guide.
[50] See in particular the judgment of Mason CJ and Deane J at 289.
[51] See in particular G Documents page 80.
CONCLUSION
In this matter, there are two primary considerations which favour an adverse exercise of the discretion. A number of the other considerations weigh in favour of a favourable exercise and one of those very heavily. The matter is finely balanced.
Ultimately I have decided that the discretion should be exercised in the applicant’s favour. Notwithstanding that the applicant’s offending is very serious, viewed in context the risk to the community is much lower than would usually be the case in a matter of this kind. In particular, the conduct is isolated, the applicant has no history of offending and the prospect of re-offending is low. The applicant represents a minimal danger to the Australian community. This diminishes to a significant degree the weight that primary consideration number one would normally carry.
The second important matter is that the applicant is likely to be indefinitely detained if a visa is not granted. The evidence before me establishes that the applicant has already suffered a decline in his mental health since being in detention and I am satisfied that if he remains in detention the negative impact on him is likely to be significant.
When the low risk of criminal offending is balanced against the very significant harm to the applicant that is likely to flow from exercising my discretion adversely to him (even accepting that primary considerations should generally be given more weight), I am satisfied that the decision under review should be set aside. I have taken into account all of the other considerations but none of them cause me to alter my analysis.
DECISION
The reviewable decision dated 15 October 2021 is set aside.
The application is remitted to the respondent for determination on the basis that the grant of the visa is not prevented by section 501(1) of the Migration Act.

I certify that the preceding 149 (one hundred and forty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan

...................................[sgd].................................
Associate
Dated: 17 January 2021

Date(s) of hearing: 21 and 22 December 2021

Solicitor for the Applicant: Mr Virajith Hewaarachchi, Refugee & Immigration Legal Centre

Counsel for the Applicant: Mr Julian Murphy

Solicitors for the Respondent: Grace Ng, Australian Government Solicitor

Counsel for the Respondent: Mr John Papalia

[2022] AATA 58

11 January 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

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