GJJF v Minister for Home Affairs (Migration)

[2019] AATA 930

GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)

Division:GENERAL DIVISION

File Number:          2019/1152

Re:GJJF  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Member T Eteuati

Date:17 May 2019

Place:Sydney

The decision under review is affirmed.

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

Member T Eteuati

Catchwords

MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(d)(i) - whether the discretion to refuse to grant the Bridging visa should be exercised - application of Direction No. 79 –decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

Coker v Minister for Immigration and Border Protection[2017] FCA 929

DKXY v Minister for Home Affairs[2019] FCA 495

Doan and Minister for Home Affairs (Migration) [2019] AATA 169

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Frazer (Migration) [2018] AATA 593

FYBR v Minister for Home Affairs[2019] FCA 500

Minister for Immigration and Border Protection v Le [2016] FCAFC 120

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Omar v Minister for Home Affairs [2019] FCA 279

KLQF and Minister for Home Affairs (Migration) [2019] AATA

QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

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

TGXY and Minister for Home Affairs (Migration) [2019] AATA 757

Uelese v Minister for Immigration and Border Protection [2015] HCA 15

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

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

Secondary Materials

Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Explanatory Memorandum Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct Bill 1998 (No.2)

Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014

REASONS FOR DECISION

Member T Eteuati

17 May 2019

background

1. This is an application by GJJF (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 20 February 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).

2. The Applicant arrived in Australia on 8 June 2013 by boat as an unauthorised maritime arrival. As such, he was prevented by section 46A of the Act from applying for a visa unless the Minister allowed him to do so.

3. On 23 July 2013, the Applicant was granted a Class UJ Subclass 499 (Humanitarian Stay) temporary visa. He was granted a Bridging visa on the same day.

4. On 7 July 2016, the section 46A bar was lifted in respect of applications for a temporary Protection visa or Safe Haven Enterprise visa. The bar lift was revoked by the Minister on 1 October 2017. The Applicant did not apply for such a visa between 7 July 2016 and 1 October 2017.

5. The last Bridging visa held by the Applicant ceased on 2 October 2017 and he became an unlawful non-citizen required to be detained under section 189 of the Act.

6. The Applicant committed a number of offences between August 2017 and July 2018. As he did not hold a visa and was an unlawful non-citizen, the Applicant was detained in immigration detention on 6 April 2018 upon his release from criminal custody.

7. On 18 June 2018, the Applicant purported to lodge an application for a Class XE Subclass 790 (Safe Haven Enterprise) visa. This application was treated as invalid as the Applicant was prevented from making such a visa application by section 46A of the Act. The application was referred to the Minister as an application to lift the section 46A bar, however the section 46A bar was never lifted in respect of the Applicant’s application.

8. On 20 December 2018, the Applicant applied for a Bridging visa. On 31 December 2018 a Notice of Intention to Consider Refusal (“NOIR”) under section 501 of the Act was sent to the Applicant. That notice informed the Applicant that he may not pass the character test on the basis that if he was allowed to remain in Australia there was a risk that he would engage in criminal conduct.

9. By letter of 14 February 2019, the Applicant responded to the NOIR.

10. On 20 February 2019 the Minister refused the Applicant’s application for the grant of a Bridging visa relying on section 501(6)(d)(i) of the Act. A copy of the reasons for decision were handed to the Applicant on 22 February 2019.

11. On 1 March 2019, the Applicant applied to this Tribunal for review of the Minister’s delegate’s decision to refuse his application for a Bridging visa.

12. The matter was heard on the 1 May 2019.

13. For the reasons below, I have found that the Minister’s decision, to refuse the Applicant’s application for a Bridging visa, should be affirmed. The Tribunal considers that this is the correct decision in this case.

    issues

14. Section 501(1) of the Act provides:

    “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.”

15. The two issues are:

    ·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character; and if so

    ·whether the Tribunal considers that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, should be exercised.

16. If the Applicant satisfies the Tribunal that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under section 501(1) of the Act is not enlivened.

17. If the Applicant does not satisfy the Tribunal that the Applicant passes the character test, the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.

18. If the Tribunal decides that the discretion in section 501(1) of the Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, not be exercised.

    Evidence

19. The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”) and the documents tendered into evidence by the Respondent and marked as exhibits S1 to S10. The evidence contained in these documents is discussed throughout these Reasons: see ‘Annexure 1’.

20. The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in response to questions in cross-examination by the Respondent and questions from the Tribunal.

21. A summary of evidence of the Applicant is provided below from paragraph 24 of these Reasons.

    does the Applicant pass the character test?

22. Section 501(6) of the Act relevantly provides:

    (6)For the purposes of this section, a person does not pass the character test if:

    …

    (d)   in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)engage in criminal conduct in Australia; or

    …

23. The Minister’s delegate relied solely on subparagraph 501(6)(d)(i) of the Act in finding that the Applicant did not pass the character test.

    Summary of evidence

24. The Applicant provided no statement to the Tribunal. The Applicant did however provide a letter to the Department in reply to the NOIR. In that letter the Applicant described his criminal behaviour as reckless, reprehensible, and unacceptable.

25. The Applicant stated that he was targeted in Iran for expressing his views. He said that he was shot in the bicep and was almost killed. He stated that this was the reason why he left Iran. The Applicant stated that he could not return to Iran because he may be killed there.

26. The Applicant explained in his letter that his sister had passed away in 2016 in a car crash and that this had affected his psychological state. The Applicant said that he could not cope with his sister’s death and that his “life spiralled downhill after that.” After his sister passed away, the Applicant said that he started using marijuana to deal with his grief. The Applicant indicated that he then began using “more consequential drugs like methamphetamine.”

27. The Applicant said that his judgement was altered, that he became isolated and oblivious to reality. He said that “Even pertinent issues as adhering to the laws turned into frivolous concepts. Inevitably, I became addicted to these drugs. I couldn’t go a day without using them, always in the streets looking for more to satiate my thirst. I was in the abyss that promised doom, this drugs would exacerbate the problems I was facing. I was deceiving myself that life was normal, I glossed over the consequences ensuing from my actions with crass indifference.”

28. The Applicant indicated that prior to using drugs he had never offended and suggested that if he were granted a visa he would never reoffend.

29. The Applicant said that he was regretful of his offences and was “genuinely contrite about my actions”. The Applicant asked for the chance to prove himself in the community.

30. The Applicant has sought treatment for his drug addiction by being on a methadone program in immigration detention. The Applicant has given evidence that that treatment stopped four or five months ago.

31. At the hearing, the Applicant said that he will not return to taking drugs as he decided some time ago that this was a negative in his life and that he wished to live a positive life and contribute to the community. He said that being in detention has given him the opportunity to break his cycle of drug dependence.

32. Much of the Applicant’s evidence during the hearing was directed to his offending and his claims to fear harm in Iran. The Applicant’s offending behaviour is discussed below.

33. The Applicant claimed that he feared being harmed by the government of Iran. He claimed that in 2009 or 2010 he had written a 20 page paper which was critical of the Iranian government and of Islam. He claimed that he was suspended from his university for a year as a result of the paper. The Applicant claimed that he was shot as a result of the paper that he wrote.

34. The Applicant’s claims to fear harm in Iran are discussed further below under the heading “Impact to the Applicant.”

    Offending history

35. An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 31 January 2019 shows the following offences committed by the Applicant:

    (a)On 26 July 2018 the Applicant was convicted of drive vehicle under the influence of drugs – 1^st off, and a warrant was issued.

    (b)On 6 April 2018 the Applicant was convicted of the following offences:

    i.Assault occasioning actual bodily harm and sentenced to 7 months imprisonment suspended upon entering into a seven month good behaviour bond.

    ii.Shoplifting value <= $2000 with no other penalty and property to owner.

    iii.Without proceeding to a conviction, the Blacktown Local Court found the Applicant guilty of Not comply P2 license condition not display P plates and made an order dismissing the charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    iv.Goods suspected stolen in/on premises (m/v) with no other penalty and property to owner.

    v.Shoplifting value <= $2000 with no other penalty and property to owner.

    (c)On 16 February 2018 a detention application was granted for the arrest of the Applicant for breach of bail.

    (d)On 6 September 2017 the Applicant was convicted of the following offences:

    i.Common assault and fined $550.

    ii.Shoplifting value <= $2000 and fined $150.

    (e)On 23 August 2017 the Applicant was convicted of the following offences:

    i.Three counts of possess prohibited drugs and was subjected to a 12 month good behaviour bond in respect of each offence.

    ii.Possess/attempt to, prescribed restricted substance, and subjected to a 12 month good behaviour bond.

36. At the hearing the Applicant claimed that he pled guilty to each of the above offences.

37. New South Wales police reports in relation to the Applicant’s offences were obtained on summons from the New South Wales Police and were tendered in evidence before the Tribunal.

38. The police report in relation to the convictions on 6 September 2017 relating to common assault and shoplifting, which were put to the Applicant by the Respondent’s solicitor, indicated that the Applicant attempted to take goods from a pharmacy without paying for them. The Applicant was told to stop and chased around the store. Security struggled to detain him and the Applicant pushed the retail manager of the store forcing one shoulder back and making her body “twist away”. At the hearing the Applicant denied that he had pushed or assaulted anyone on that occasion.

39. The police report in relation to the convictions on 6 April 2018 relating to assault occasioning actual bodily harm and shoplifting, which were put to the Applicant by the Respondent’s solicitor, indicated that the Applicant was in a Coles supermarket where he had loaded $1147.15 worth of baby formula into a trolley and exited the store without paying. A loss prevention officer attempted to stop the Applicant by grasping his arm and telling him to stop. The Applicant pushed past the victim and tried to escape. The victim then grabbed the Applicant’s arm a second time and the Applicant pulled away from the victim and punched him in the face twice. He then punched the victim three more times and fled the scene. At the hearing the Applicant said that he “went through somebody but I never punched anybody.”

40. On its face, it appears that the threshold in section 501(6)(d)(i) of the Act for finding that a person does not pass the character test is a low one and that it is sufficient for the cancellation power to be enlivened that, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.

41. The first thing to say about section 501(6)(d)(i) of the Act as it applies in this case, is that it appears to presuppose that the outcome of a decision under section 501 would result in a person being “allowed to enter or to remain in Australia.” In the present case, the Applicant is barred from applying for any visa to remain in Australia. The Applicant has been an unlawful non-citizen since October 2017 and he has been in detention since April 2018.

42. Whether or not the Applicant is granted a Bridging visa, he will be removed from Australia. Indeed the only basis upon which the Applicant could be granted a Bridging visa is on the basis of preparation for the Applicant’s removal. If he is successful in his current application before the Tribunal then it is likely that he will be granted a Bridging visa and be freed from immigration detention pending removal. That Bridging visa will only remain in effect until the Applicant is removed from Australia. If he is unsuccessful in his current application before the Tribunal, he will remain an unlawful non-citizen and be required to remain detained pursuant to sections 189 and 196 of the Act pending removal.

43. The important point regarding these particular proceedings is that these proceedings will not determine whether the Applicant is “allowed to enter or to remain in Australia”. Rather, the outcome of these proceedings will determine whether the Applicant can await his imminent removal in the community, or whether he must await his removal in detention.

44. Having said that, for the purpose of this application, the Tribunal is willing to accept that section 501(6)(d)(i) of the Act applies to the Applicant such that the Applicant will not pass the character test if the Tribunal finds that if he is released from detention there is a risk that he would engage in criminal conduct in Australia.

45. The second thing to say about section 501(6)(d)(i) of the Act in this case is that the Direction appears to purport to direct decision-makers as to the interpretation of the provision.

46. Paragraph 6 of Annex A to the Direction relevantly provides:

    “…

    (2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

    (3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

    6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

    (1)A person does not pass the character test if, in the event the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia

    (2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.”

47. While it is clear that the Direction cannot be inconsistent with the Act or the Regulations, and cannot, of its own accord, define or restrict the extent of the power section 501(6)(d)(i) of the Act, the Tribunal considers that the guidance provided for by paragraph 6 of Annexure A to the Direction does not fall foul of these principles as it is consistent with the intention evidenced in the secondary material as follows.

48. In Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970, Senior Member Puplick stated at [26] and [27]:

    “It is important to note the deliberate public policy decision to specify that there needs to be merely “a” risk to enliven the operation of subsection 501(6) of the Act. In 1998, passage of the Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct) Bill inserted a new regime into the Migration Act in the form of section 501(6). That legislation provided that in assessing the threat to the community there had to be a “substantial risk” that the Applicant would offend. The Explanatory Memorandum to the Bill stated: “The requirement of “significant risk” is intended to reduce the current threshold of risk that a decision-maker can accept before making a finding that a personal will not pass the character test because they may engage in specified conduct.”

    27. However in 2014, the Migration Amendment (Character and General Visa Cancellation) Act specifically removed the word “significant” from clause 501(6)(d) leaving it as “a” risk. On this occasion the Explanatory Memorandum stated:

    “The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”

1. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (“Sabharwal”), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:

   “… . Section 501(6)(d)(i) provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would...engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”

2. In Sabharwal the Full Court found that in that case the Minister had found that there was a risk that the Applicant would engage in criminal conduct in Australia. The Full Court stated that the Minister had said he “could not rule out the possibility of further offending by Mr Sabharwal”. The Full Court, citing Coker v Minister for Immigration and Border Protection[2017] FCA 929 at [62] per Moshinsky J, found that the Minister’s statement was in substance also a finding that there was a risk of the Applicant reoffending. The Full Court concluded that in their view the Minister’s conclusion that there was a risk that the Applicant might again engage in offending conduct was one which a reasonable decision-maker could reach on the materials before the Minister.

3. In QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 (“QKVH”), Deputy President Forgie discussed the meaning of “criminal conduct” in section 501(6)(d) and the meaning of “risk” in section 501(6)(d)(i) of the Act. She stated at [11] to [13]:

   “What is meant by the words “risk of the person engaging in conduct for which a criminal conduct could be recorded”? I note the general view that:

   ““.. Interpreting a composite phrase by dissecting it into its component words and seeking a meaning for each has, however, long been identified as an inappropriate method of construing such a phrase ...”

   I am not concerned with a phrase as such but I will bear that in mind as I look first to the meaning of “criminal conduct”. Consistently with the statement in cl 6.1(2) of annex A of the Ministerial Direction, the reference to “criminal conduct” in s 501(d)(i) is not limited to conduct which has led to a criminal conviction. It extends to conduct “... for which a criminal conviction could be recorded ...”. As the Full Court of the Federal Court said in Minister for Immigration v Baker after considering the various references in the Migration Act to “criminal convictions” and to “past criminal conduct” and the like, the reference to “criminal conduct”:

   “... is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, ‘Criminal Allegations in Civil Cases’ (1991) 107 LQR 194.”

   In other words, it may be that the conduct led to a court’s finding the conduct proved when a person was charged with an offence but doing so without conviction. That conduct would be “criminal conduct”. It may be that the person has engaged in conduct, for which he or she could have been charged with an offence and, if the charge were proved, convicted of a criminal offence but never was. If the Tribunal is satisfied that this conduct occurred, that conduct could be regarded as “criminal conduct”. Overstaying a visa and so being in Australia as an unlawful non-citizen is not of itself criminal conduct for there is no criminal offence of that type. There are consequences, of course, such as detention and removal from the country but they are not consequences that might lead to a conviction for a criminal offence.

   The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:

   “... 1 the chance or possibility of suffering loss, injury, damage, etc; ...”.

   Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.”

4. Similarly, in Frazer (Migration) [2018] AATA 593 at [20] and [21], I said the following regarding the risk threshold to enliven the cancellation power in section 116(1)(e)(ii) of the Act:

   “It appears that the threshold in section 116(1)(e)(ii) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the Applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of an individual or individuals.

   Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person may or might be a risk to the health or safety of an individual or individuals absent any compelling evidence to support that assessment is insufficient to enliven the cancellation power. It could be said that any given person in the community ‘may’ or ‘might be’ a risk to the health or safety of an individual or individuals but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.”

5. In the present case, there is evidence that the Applicant has committed numerous offences in 2017 and 2018. The Applicant has given evidence that his offending was caused by an addiction to drugs which developed as a coping mechanism to deal with the death of his sister in 2016.

6. There is also some evidence that the Applicant has been suspected of possessing contraband materials including drugs in detention. The Applicant said that material was found in his room but that the material was not his.

7. There is also some evidence in the detention centre reports that the Applicant has been verbally abusive to detention officers and that there is CCTV footage of him attacking a fellow detainee by throwing punches at him. The Applicant indicated that he has used unkind and aggressive language towards staff in detention but has never used swear words. In addition the Applicant indicated that there are no CCTV recording devices in the area in which he is claimed to have assaulted a fellow detainee and that he never assaulted the fellow detainee.

8. As the Applicant has not been convicted of any offences in relation to the alleged assault and the Applicant has denied that the assault occurred, the Tribunal places no weight on the reports regarding the alleged assault. The Tribunal accepts the Applicant’s evidence that he has used aggressive language towards staff of the detention centre but places no weight on this evidence.

9. The Tribunal is concerned with the reports that contraband material, suspected of being drugs, was found in the Applicant’s proximity in detention. The Tribunal is also concerned with the Applicant’s evidence at hearing that drugs were readily available in both the prison where he was detained and the detention centre. These matters, in addition to the fact that the Applicant has admitted to a drug addiction in the past, which he claims lead him to his offending, raise the concern that the Applicant may still be using drugs and therefore upon release may continue to commit crime in order to fuel his drug addiction.

10. In these circumstances, and given the Applicant’s past criminal record, the Tribunal considers that there is a risk that if the Applicant is allowed to remain in Australia, the Applicant will engage in criminal conduct in Australia.

11. As I have found that there is a risk that, if the Applicant is allowed to remain in Australia, the Applicant may engage in criminal conduct in Australia, the Applicant does not pass the character test.

    should the discretion to cancel the Applicant’s visa be exercised?

12. In considering whether to exercise the discretion in section 501(1) to refuse to grant an Applicant a visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether to refuse to grant an Applicant a visa.

13. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

14. The relevant considerations in relation to consideration of visa refusal are contained in Part B of the Direction.

15. Paragraph 11 of the Direction provides for three primary considerations. They are:

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

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

    (c)Expectations of the Australian community.

16. Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:

    (a)International non-refoulement obligations;

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

17. Subparagraphs 8(3) to (5) of the Direction provide:

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

18. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:

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

19. The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (79).

20. The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.

21. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa. The principles in paragraph 6.3 are as follows:

    1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere

    3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

22. The considerations in the Direction that will be relevant in the present case may be significantly different from those in the usual case where the outcome of the Tribunal’s decision may determine whether an Applicant will be allowed to remain in Australia. This is especially evident in this case as regards the consideration of Australia’s international non-refoulement obligations.

23. As mentioned above, these proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. In the present case, the Applicant was refused a Bridging visa. The Applicant is barred from applying for any visa to remain in Australia. The Applicant has been an unlawful non-citizen since October 2017 and he has been detention since April 2018. Whether or not the Applicant is granted a Bridging visa, he will be removed from Australia. Indeed, the only basis upon which the Applicant could be granted a Bridging visa is on the basis of preparation for the Applicant’s removal.

    Primary consideration A: Protection of the australian community from criminal or other serious conduct

24. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa Applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that 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.

    The Nature and Seriousness of the Applicant’s Conduct to Date

25. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;

    (e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

    (f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    (g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (h)The cumulative effect of repeated offending;

    (i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

26. Two of the Applicant’s offences were violent crimes which the Direction dictates are to be viewed very seriously. For his offensive of common assault the Applicant forcefully pushed a store employee after he had been restrained for attempting to steal goods. The victim of the assault was a woman and the Direction dictates that violent crimes against women are to be viewed very seriously. On the second occasion the Applicant was attempting to steal a large amount of baby formula from a Coles store. During this attempt a prevention loss officer attempted to stop the Applicant and he repeatedly punched the prevention loss officer.

27. The Applicant has also been convicted of possessing prohibited drugs and shoplifting. In addition, the Applicant has been convicted of driving under the influence of drugs.

1. While the Direction dictates that crimes committed while a non-citizen is in immigration detention are serious, the Tribunal has not placed any weight on the Applicant’s alleged assault as he has not been convicted of any offences relating to his time in prison.

2. The sentences which have been imposed on the Applicant would appear to indicate that his offending was at the lower end of the spectrum of seriousness for those offences. The Applicant’s sentence of imprisonment for seven months on 6 April 2018 was fully suspended, however the Applicant gave evidence that he spent some time in gaol. It is not clear whether this was because of the breach of bail for which he was convicted on 16 February 2018 or whether he was being held in remand prior to his sentencing for the assault occasioning actual bodily harm offence.

3. The Applicant offended frequently in 2017 and 2018. The Tribunal accepts that this offending arose because the Applicant had become addicted to illegal drugs. All of his offending was consistent with that of someone who has become addicted to illegal drugs.

4. The nature and cumulative effect of his repeated offending was that he was continuing to steal in order to fuel his drug addiction and that he would become violent when people tried to stop him from stealing. The Applicant was also caught driving a vehicle under the influence of drugs which itself presents a danger to others on or near the road.

5. While the Direction dictates that, at least for the Applicant’s violent offences, his conduct should be considered serious, the Tribunal considers that the Applicant’s crimes were not particularly serious. Essentially, the Applicant has engaged in low-level crime which is often associated with those who have drug addictions.

6. Nevertheless, the Applicant committed numerous crimes, including crimes of violence, shoplifting and driving under the influence of drugs which cumulatively the Tribunal considers of some seriousness.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

7. Paragraph 11.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 11.1.2(1) of the Direction provides that 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.

8. Paragraph 11.1.2(2) provides for the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

9. In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:

   (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 from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

   (ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to the 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); and

   (iii)the duration of intended stay in Australia.

10. Paragraph 11.1.2(4) of the Direction provides a decision-maker should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

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

11. The Tribunal considers that if the Applicant continues to steal to support a drug addiction, the harm to the Australian community would be that members of the community would be likely to be dispossessed of goods and money.

12. If the Applicant continues to steal and shoplift the Tribunal also considers that there is a good chance of the Applicant will continue to use violence to resist attempts to prevent him from stealing. This could result in physical harm to members of the Australian community, and potentially very serious harm.

13. Similarly, if the Applicant continues to operate a motor vehicle under the influence of drugs this could endanger the well-being and lives of members of the Australian community on and around our roads.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

14. There was no expert evidence in this matter as to the likelihood of the Applicant reoffending.

15. There is some evidence that the Applicant has sought treatment for his drug addiction by being on a methadone program. The Applicant has given evidence that his treatment stopped four or five months ago.

16. The Applicant said that he will not return to taking drugs as he decided some time ago that this was a negative in his life and that he wished to live a positive life and contribute to the community. He said that being in detention has given him the opportunity to break his cycle of drug dependence.

17. The Tribunal is not convinced by the Applicant’s evidence. The Tribunal accepts that the Applicant was addicted to drugs prior to this time in gaol and immigration detention. As mentioned above, the Tribunal is concerned with the reports that contraband material, suspected of being drugs, was found in the Applicant’s proximity. The Tribunal is also concerned with the Applicant’s evidence at hearing that drugs were readily available in both the prison where he was detained and the detention centre. These matters, in addition to the fact that the Applicant has admitted to a drug addiction in the past, which he claims led him to his offending, raise the concern that the Applicant may still be using drugs and therefore upon release may continue to commit crime in order to fuel his drug addiction.

18. In the circumstances, and given the Applicant’s past criminal record, the Tribunal considers that there is a real risk that, if the Applicant is allowed to await his removal from Australia in the community, he will continue to offend as he has done in the past.

    Conclusion: Primary Consideration A

19. The Tribunal has found that the Applicant’s offences were serious but not particularly so. The nature of his repeated offending was that he was continuing to steal in order to fuel his drug addiction and that that he would become violent when people tried to stop him from stealing. The Applicant was also caught driving a vehicle under the influence of drugs which itself presents a danger to others on or near the road.

20. The Tribunal has found that, if the Applicant were to continue to offend that this may result in harm to members of the Australian community through the loss of property, being physically harmed by the Applicant and by being at risk from the Applicant operating a motor vehicle while under the influence of drugs.

21. The Tribunal has found that there is a real risk that the Applicant will reoffend if released into the community.

22. The Tribunal has taken into consideration the principle that Australia has a low tolerance of any criminal conduct by visa applicants. The Tribunal has also considered that it is likely that the Applicant will remain in Australia only until preparations for his removal have been finalised.

23. After giving thought to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration weighs in favour of affirming the decision to refuse the Applicant a visa.

24. The Tribunal attributes moderate weight to the primary consideration of the protection of the Australian community.

    Primary Consideration B: The best interests of minor children in Australia

25. Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa.

26. Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.

    primary Consideration C: The expectations of the Australian Community

27. Paragraph 11.3(1) of the Direction states:

    “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”

    How are those expectations determined?

28. In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:

    ·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and

    ·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.

29. In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation. While Doan involved consideration of paragraph 13.3(1) of Part C of Direction 65 and the present case involves consideration of paragraph 11.3(1) of Part B of Direction 79, there are no material differences between these two paragraphs.

30. In addition, the fact that Direction 79 is relevant to this case, rather than Direction 65, has no material bearing on this case. The differences between Directions 65 and 79 are primarily that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes. The Applicant has not harmed women or children in the past and there is no evidence that he will do so in the future.

31. In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.

32. Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.

33. However, in Doan I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 11.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:

    ·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);

    ·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and

    ·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).

34. In Doan I also found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 13.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:

    • whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
    • the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
    • the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).

35. However, I noted in Doan at [215] that the principles in paragraph 6.3 are not simply a restatement of all the relevant considerations mentioned in the Direction. The principles do not refer to international non-refoulement obligations, the impact of visa refusal on Australian business interests or the impact of visa refusal on victims. Thus, while the Government has expressed that the matters in paragraph 6.3(5) and (7) of the Direction reflect community values and standards, it has made no such statement in relation to the matters mentioned directly above.

36. Since my decision in Doan, the Federal Court, on 11 April 2019, handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are: FYBR v Minister for Home Affairs[2019] FCA 500 (“FYBR”); and DKXY v Minister for Home Affairs[2019] FCA 495 (“DKXY”).

37. In FYBR her Honour Perry J concluded at [42]:

    “It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”

38. In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in  Uelese; Afu and YNQY.

39. In DXKY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.

40. In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.

41. However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.

42. In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. The Tribunal has taken into account that Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. The Tribunal has also taken into account that Australia has a low tolerance of any criminal conduct by visa applicants.

    Conclusion: Primary Consideration C

43. The Tribunal accepts that the Applicant breached the expectation of the community to abide by the law and that the community has a low tolerance for any criminal conduct by visa applicants who have only been in the community for a short period of time.

44. Overall, given the nature of the Applicant’s offending and that there is a real chance that he will reoffend, the Tribunal finds that the Australian community would consider that the risk of future harm to the community while the Applicant awaits removal from Australia is unacceptable and that the Applicant should remain in immigration detention pending his imminent removal from Australia.

45. The Tribunal finds that this consideration weighs in favour of affirming the visa refusal decision and the Tribunal places moderate weight on this consideration.

    other considerations

46. Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:

    (a)International non-refoulement obligations;

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

    International non-refoulement obligations

47. Paragraph 12.1 of the Direction provides:

    (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    (2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

    (3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an Applicant for a protection visa).

    (4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

    (5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).

    (6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

1. The Applicant is barred from making a Protection visa application or any other visa application. However, the Applicant has made claims suggesting that he fears harm from the Iranian government if he returned to Iran. The Applicant claims he will be harmed on the basis of dissident writing against the Iranian government and Islam which the Iranian government discovered prior to his departure from Iran.

2. In the past, the Tribunal and the Minister have often considered Australia’s non-refoulement obligations in respect of an Applicant by concluding that any such obligations will be considered if the Applicant applies for a Protection visa. In some cases this has been found not to be an erroneous approach.[1]

   [1] see Ali v Minister for Immigration and Border Protection [2018] FCA 650; Greene v Assistant Minister for Home Affairs [2018] FCA 919; Turay v Assistant Minister for Home Affairs [2018] FCA 1487; BKS18 v Minister for Home Affairs [2018] FCA 1731; Sowa v Minister for Home Affairs [2018] FCA 1999; and DOB18 v Minister for Home Affairs [2018] FCA 1523.

3. The last mentioned case was subject to an appeal in the Full Court in DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”). In that decision, Robertson J, with whom Logan J generally agreed, stated:

   “While I accept the appellant’s submission that the role that non-refoulement obligations might play in a Protection visa application is very different to the role they might play in a s 501BA determination, I do not accept the premise that it is a jurisdictional error in all circumstances for the Minister to reason that whether non-refoulement obligations are owed will be fully considered in the course of processing an application for a valid Protection visa which the Applicant is able to make.”

4. In DOB18, Logan J found that the qualitative difference between a decision as to whether a person was a refugee and a decision whether to exercise a similar discretion did not require the Minister to determine whether an Applicant was owed protection obligations. His Honour stated at [65]:

   “…it does not follow from this “qualitative difference” that the Minister was obliged, in exercising in relation to the appellant the discretionary power conferred by s 501BA, to advert to whether Australia owed a protection obligation to him. Such a conclusion would be inconsistent with the reasoning in Full Court’s judgment in Le.”

5. In Minister for Immigration and Border Protection v Le [2016] FCAFC 120, the Full Court of the Federal Court (Allsop CJ, Griffiths and Wigney JJ) found that Australia’s non-refoulement obligations are not a mandatory relevant consideration in the exercise of the discretion to cancel a visa in section 501(2) of the Act in circumstances where it remained open to an Applicant to make an application in Australia for a Protection visa.

6. However, in Omar v Minister for Home Affairs [2019] FCA 279 (“Omar”), Mortimer J found that it will be a failure to carry out the task required if a decision maker fails to give proper consideration to an Applicant’s representation that he or she is a person in respect of whom Australia has non-refoulement obligations. Her Honour found that the decision maker will fail to do so if the decision maker considers that, where it is open to an Applicant to apply for Protection visa, it is unnecessary to consider Australia’s international non-refoulement obligations.

7. However in the current case, these issues do not arise. That is because, as I point out in KLQF and Minister for Home Affairs (Migration) [2019] AATA, this consideration involves an assessment of the risk that a decision, in this case to refuse an Applicant’s Bridging visa application, may result in Australia breaching its international non-refoulement obligations. That is, the consideration involves an assessment of the risk that a decision to refuse the grant of a visa may result in a person in respect of whom non-refoulement obligations are owed, being returned to a country where there is a real chance that they may be harmed in the way contemplated by the Refugees Convention, the CAT or the ICCPR.

8. In the present case, the Applicant is barred from applying for any visa to remain in Australia. Whether or not the Applicant is granted a Bridging visa, he will be removed from Australia. Indeed the only basis upon which the Applicant could be granted a Bridging visa is on the basis of preparation for his removal. If he is successful in his current application before the Tribunal then it is likely that he will be granted a Bridging visa and be freed from immigration detention pending removal. That is, whether or not the Applicant is a person in respect of whom Australia owes non-refoulement obligations will not be determined through consideration of a Protection visa for the Applicant. Regardless of the outcome of this decision, as matters currently stand, the Applicant will be removed from Australia whether or not that is in breach of Australia’s non-refinement obligations.

9. Therefore, the decision of the Tribunal in this matter can have no bearing on whether or not Australia will breach its non-refoulement obligations. The only relevance of these proceedings is whether the Applicant must remain in detention pending removal or whether he is released into the community pending removal.

10. While the Tribunal must take into account all relevant considerations, for the reasons above, the Tribunal has determined that the consideration of Australia’s non-refoulement obligations in this case, is not relevant. In these circumstances the Tribunal places no weight on this consideration.

11. The Tribunal notes that the Applicant’s claims to fear harm if returned to Iran may be relevant to the consideration of “Impact on the Applicant” as they may be relevant to the time that he will spend in immigration detention. The Tribunal has considered the “Impact on the Applicant” below as a separate “other consideration”.

    Impact on family members

12. Paragraph 12.2 of the Direction provides:

    “Impact of visa refusal on immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”

13. Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.

    Impact on victims

14. Paragraph 12.3(1) of the Direction provides:

    “Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;”

15. There is no direct evidence of the impact of a decision to grant the Applicant a visa on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a visa grant is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.

    Impact on Australian business interests

16. Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.

    Impact on the Applicant

17. The Tribunal has also considered the effect of refusal of a Bridging visa on the Applicant. While this consideration is not listed in paragraph 12 of the Direction, the matters which can be taken into account as other considerations are not limited to the matters listed in that paragraph. The Tribunal considers that refusal of a Bridging visa would have a negative effect on the Applicant.

18. The Applicant has expressed that being in the community, free from detention, was very important to him.

19. If the Applicant is refused a Bridging visa, he would be deprived of living in the community pending his removal from Australia. For the reasons which follow, the Tribunal does not consider that the Applicant will remain in detention for any prolonged or indefinite period of time.

20. The Applicant claimed that he feared being harmed by the government of Iran. He claimed that in 2009 or 2010 he had written a 20 page paper which was critical of the Iranian government and of Islam. He claimed that he was suspended from his university for a year as a result of the paper. The Applicant claimed that he was shot for writing the paper.

21. The Tribunal does not accept these claims and finds that, for the purposes of this decision, the Applicant has no fear of returning to Iran. First, the Applicant made no mention of writing the paper, being shot or fearing the Iranian government during his entry interview upon arriving in Australia by boat. A record of the entry interview records that in answer to the question as to why the Applicant left Iran he answered:

    “I was studying computer engineering at uni for three years and because of financial problems I could not continue my study. Iran is now a problem for me, I want to study ion Australia. And because I am Kurdish and we are not important in Iran. After Uni I worked for 3 years but when the new graduates came they fired me from my work… A year ago I tried to commit suicide but after I started planning to come to Australia with my friends and I felt better.”

22. In answer to a question as to why the Applicant wanted to commit suicide the Applicant answered “because of the disappointment with my study and work.”

23. In answer to the question “what do you think will happen to you if you return to your country of nationality?” The Applicant answered:

    “If I got back I can’t go on with my life and about a year I thought about coming to Australia - if I go back I will try to come back to Australia again.”

24. During the entry interview the Applicant indicated that he had participated in a protest in 2009 in Tehran against the incoming president. The Applicant did not indicate that he had any other political involvement or that he was of interest to the Iranian government for any other reason. The Applicant indicated that he had never been arrested or detained or charged with any offences in Iran.

25. At the hearing the Respondent’s solicitor asked the Applicant why he had not told immigration officials about the claims that he had made in his purported Protection visa application in June 2018. The Applicant explained that he had been told by others that the initial interview was a short informal interview and that he need not disclose his protection claims. He was told that he should make his protection claims once he was in Australia and had his “court case.”

26. The Tribunal does not accept this explanation and finds that the Applicant’s claims raised in his purported Protection visa application in 2018 have been concocted to improve the Applicant’s chances of being able to remain permanently in Australia. When asked why the Applicant left Iran during the initial interview the Applicant disclosed that he had financial problems which prevented him from completing his studies, the Applicant mentioned that he was a Kurd and that Kurds were not important in Iran. The Applicant said that he was fired from his job when he was replaced by new graduates. The Applicant claimed that he tried to commit suicide because he was disappointed with his work and study. However, the Applicant did not mention anything about writing a paper critical of the Iranian government and Islam, being targeted by the Iranian government or being shot. The Applicant claimed there was no need to disclose the reason for him leaving Iran and that was the reason that he did not disclose the matters contained in his purported Protection visa application. However, the Applicant did in fact disclose to immigration officials the reason why he left Iran which had to do with his disappointment with his work and study and his desire to study in Australia.

27. There were also various inconsistencies between the information that the Applicant gave during his initial interview, in his Protection visa application, and before the Tribunal. Apart from the matters mentioned previously, these included how long the Applicant had worked in Iran after he was suspended from University, whether he completed his studies, how many men had been involved in shooting him, where he was shot and whether he had been detained by Iranian authorities. The Tribunal notes that the Applicant’s evidence about fearing harm was vague and lacked detail. For example, he did not indicate when he says he was shot, he did not describe the men who he claimed shot him, he did not expressly say whether the men were suspected to be members of the government, he did not describe a time that he spent in hospital and he did not explain why he did not flee Iran soon after being shot.

28. Further, while the Applicant has recently claimed to fear harm in Iran, the Applicant did not attempt to make an application for a Protection visa until after he had been placed in immigration detention in mid-2018. This was despite arriving in Australia in 2013 and being invited to apply for a Protection visa in July 2016. The Applicant was also advised on multiple occasions of the deadline for applying for a Protection visa, and yet he failed to apply for a Protection visa.

29. In addition, the Tribunal has before it a case note from the New South Wales Department of Corrective Services indicating that the Applicant told a corrective service officer that he intended to return to Iran on release from prison. At the hearing the Applicant denied that he had done so.

30. The Applicant attempted to explain the various inconsistencies by saying that there were problems with the interpreter used at his initial interview and that the person that filled in his Protection visa application had erred in the information he had provided. Similarly, the Applicant indicated that various immigration officers, the corrective services officer and various detention officers had either erred in the information that they had reported or lied about it. The Tribunal does not accept the Applicant’s evidence and instead prefers the evidence in the G documents and supplementary material which all appears to support the view that the Applicant does not fear harm if returned to Iran.

31. The Tribunal finds that there is no real chance that the Applicant will face serious harm if he is returned to Iran. The Tribunal also finds there is no real risk that the Applicant will face significant harm if he is returned to Iran. The Tribunal has found that the Applicant has fabricated his claims to fear harm in Iran in order to bolster his chances of remaining in Australia permanently.

32. The reason that these matters are relevant to the hardship that the Applicant may face if he is not granted a Bridging visa, is the Tribunal finds that because the Applicant has no subjective fear of returning to Iran, the Tribunal finds that the Applicant will voluntarily depart Australia. This will mean that the Applicant should not spend any prolonged or indefinite period in immigration detention as there is no evidence before the Tribunal that Iran refuses to accept entry of its citizens into its territory.

33. Although it is not relevant to the current decision, the Tribunal notes that because it has found that the Applicant has no well-founded fear of persecution in Iran, and would not otherwise suffer from any harm contemplated by the CAT or ICCPR if returned to Iran, returning the Applicant to Iran would not appear to be in breach of any of Australia’s non-refoulement obligations.

34. The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places slight weight on this consideration in the Applicant’s favour.

    Conclusion: should the power to refuse the Applicant a visa be exercised?

35. The Tribunal has found that the primary consideration of the protection of the Australian community weighs moderately in favour of visa refusal in this case. The Tribunal has found that there is a real risk that the Applicant will continue to offend if released from detention and that the consequence for members of the community could include being physically harmed or being deprived of their property.

36. The Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately in favour of visa refusal. The Tribunal has found that the Applicant will be negatively affected if he must remain in detention pending removal. However the Tribunal has found that it is unlikely that the Applicant will spend a prolonged or indefinite period in detention. The impact on the Applicant of visa refusal weighs slightly in the Applicant’s favour.

37. After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the two relevant primary considerations of the protection and expectations of the Australian community outweigh all other considerations including the hardship to, or impact on, the Applicant of remaining in detention pending his removal.

38. The Tribunal has found that the Applicant does not pass the character test and that the risk of harm to the community if the Applicant were to be released from detention pending removal is unacceptable.

39. Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to grant the Applicant a Bridging visa, is the correct decision.

    DECISION

40. The decision under review is affirmed.

163.    I certify that the preceding 162 (one hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

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

Associate

Dated: 17 May 2019

Date of hearing:

1 May 2019

Applicant:

Self-represented

Solicitor for the Respondent:

Ms Dale Watson

Australian Government Solicitor

ANNEXURE 1 - EXHIBIT REGISTER

Exhibit Number

Description of Evidence

S1

Supplementary Document: Applicant’s visa history

(Reference S12: page 105)

S2

Supplementary Document: Submission to Minister and decision record regarding revocation of s 46A bar lift

(Reference S5: pages 32-55)

S3

Supplementary Document: Application for protection visa lodged by Applicant

(Reference S9: pages 74-102)

S4

Supplementary Document: Letter of Department of Home Affairs notifying of an invalid application for a Safe Haven Enterprise Visa

(Reference S10: pages 102-103)

S5

Supplementary Document: Letter of Department of Home Affairs advising outcome of request for Ministerial Intervention

(Reference: S11, page 104)

S6

Supplementary Document: Irregular Maritime Arrival and Induction Interview

(Reference: S1, pages 1-19)

S7

Supplementary Document: Informed Referral to Status Resolution in relation to Applicant

(Reference: S8, pages 62-74)

S8

Supplementary Document:  Documents returned on summons from NSW Police

(Reference: S16, pages 121-147)

S9

Supplementary Document:  Copy of Case Notes from the NSW Department of Corrective Services in relation to the Applicant

(Reference: S17, pages 148-151)

S10

Supplementary Document: Document from NSW Health in relation to the Applicant’s medical condition and Drug use

(Reference: S13, pages 106-110)