GXKC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4825
•7 December 2021
GXKC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4825 (7 December 2021)
Division:GENERAL DIVISION
File Number: 2021/6512
Re:GXKC
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member P.Q. Wood
Date:7 December 2021
Date of written reasons: 4 January 2022
Place:Melbourne
The Tribunal affirms the decision under review.
.................[sdg]...........................................
Senior Member P.Q. Wood
Catchwords
MIGRATION – Visa refusal – citizen of Lebanon Bridging E (Class WE) Visa – substantial criminal record – failure to pass character test – whether discretion to refuse visa should be exercised – Ministerial Direction No. 90 applied – substantial criminal offending – protection of the Australian community – expectations of the Australian community – best interests of minor children – links to the Australian community – other relevant considerations – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Regulations 1994 (Cth)
Migration Act 1958 (Cth)Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Harrison and Minister for Immigration and Citizenship: Re (2009) 106 ALD 666
PQSM v Minister for Home Affairs [2019] FCA 1540Suleiman v MIBP [2018] FCA 594
Secondary Materials
Direction No. 90 – Migration Act 1958 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member P.Q. Wood
4 January 2022
INTRODUCTION
By an application made on 13 September 2021, the Applicant seeks review of a decision by a delegate of the Minister dated 10 September 2021, to refuse his application for a Bridging E (Class WE) Visa (Refused Visa) under s 501(1) of the Migration Act 1958 (the Act).
The application for review is made in accordance with s 500(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions made under s 501(1) of the Act. The Applicant had applied for the Refused Visa on 11 August 2020. At that time, Class WE Visa contained two subclasses: Subclasses 050 and 051. In the present case, the Applicant is seeking to satisfy the criteria for the grant of a Subclass 050 Visa. These criteria are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The hearing of this application was held on 11 and 12 November 2021 via video link, as permitted by s 33A of the Administrative Appeals Act 1975 (the AAT Act). The Applicant was represented by Mr Issa of Firmstone and Associates and the Minister was represented by Mr Cunynghame of Sparke Helmore.
The Tribunal heard oral evidence from the Applicant, the Applicant’s niece, the Applicant’s mother, the Applicant’s sister, and a psychologist, Dr Milic.
The Tribunal made a decision in relation to this matter on 7 December 2021. In accordance with s 43(2A) of the AAT Act, these are the written reasons for the decision.
CONFIDENTIALITY
As this matter relates to a protection-related visa, s 501K of the Act mandates that the Tribunal must not publish information that may identify the Applicant or any relatives or dependant of the Applicant. The Applicant will therefore be referred to by the anonym ‘GXKC’. The names of witnesses and other details tending to identify GXKC will not be disclosed.
BACKGROUND
Personal
The Applicant is a 39-year-old citizen of Lebanon.
His mother currently resides in Australia with his sister and her family. He has three sisters and a brother who reside in Lebanon.
The Applicant completed his formal education in Lebanon and holds two certificates, one in mechanical repair and the other in hairdressing.
In 2001, after working in a hairdressing salon in Beirut for three years, the Applicant established a salon in his hometown.
In about July 2010, the Applicant married an Australian citizen, having entered Australia on 28 June 2010.
The Applicant and his ex-wife divorced in 2012, after their marital relationship irreconcilably broke down due to her alleged infidelity.
The Applicant claims the alleged infidelity and subsequent relationship breakdown had a devastating emotional impact on him, provoking a sense of betrayal, confusion, and isolation, causing him lingering symptoms of anxiety, stress and depression.
As a child, the Applicant claims to have been exposed to war-related violence and to have witnessed the death of a young boy, which led to him developing Post Traumatic Stress Disorder (PTSD).
In about June 2012, the Applicant, with the help of his family in Lebanon, purchased a property in Australia from which he established a hairdressing and masseuse business.
Criminal offending
On 21 September 2020, the Applicant was given notice regarding possible visa refusal under s 501(1) of the Act. Specifically, the Applicant was given notice that the Department held information about his criminal history which indicated that he had a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more.
In this regard, the Applicant was convicted and sentenced by the District Court of New South Wales of the following:[1]
[1] G-Documents G3/26.
Date
Offences
Sentence
17 November
2017
(a) Assault with act of indecency (10 Charges); and
(b) Take/detain person with intention to obtain advantage
18. On all Charges:
Imprisonment for 6 years19. Commencing 25 November 2014 and concluding 24 November 2020.
3 November 2017
Assault with act of indecency (9 Charges)On all Charges:
Imprisonment for 4 years 9 monthsCommencing 25 November 2014 and concluding 24 November 2020
The Applicant was released on parole in September 2019, having served four years and nine months. He was then taken into immigration detention (discussed further below).
The Applicant was released on parole in September 2019, having served four years and nine months. He was then taken into immigration detention (discussed further below).
Visa history
The Applicant was born in Lebanon and arrived in Australia on 11 October 2009, on a sponsored Family Visitor (Class UL) Subclass 679 Visa. He is a citizen of Lebanon and holds no other nationality or right to enter or reside in a third country.
On 10 January 2010, the Applicant departed Australia, returning on 28 June 2011 on a provisional Partner Visa (Class UF) Subclass 309 sponsored by his now ex-wife, which was granted to him on 10 June 2011 whilst he was offshore. The Applicant has not departed Australia since his return on 28 June 2011.
The Applicant lodged an onshore Permanent (Subclass BC 100) Partner Visa on 5 October 2011 (Partner Visa). This Partner Visa application was refused on 2 January 2013 on the basis that his spousal sponsorship had been withdrawn following the breakdown of his marital relationship. On the same day, on 2 January 2013, the Applicant was granted an associated Bridging Visa (Class WA Subclass 010) (BVA Visa).
The Applicant sought merits review of this decision to refuse his Partner Visa application at the then Migration Review Tribunal (MRT). On 5 March 2014, the MRT affirmed the Delegate’s decision to refuse the Partner Visa application.
On 26 March 2014, the Applicant lodged an application for judicial review in relation to that decision. The associated BVA visa ceased on 11 April 2014, and the Applicant became an unlawful non-citizen. On 28 July 2014, the Applicant was granted a new BVA visa on the basis that he had an ongoing judicial review application under review. That matter was finalised on 12 November 2015, in the Minister’s favour.
On 2 December 2015, the Applicant appealed the matter to the Full Federal Court. The matter was subsequently finalised on 29 March 2016 in the Minister’s favour. The Applicant then appealed that decision on 20 April 2016 to the High Court of Australia. This application was dismissed on 30 August 2016.
On 23 September 2016, the Applicant lodged a request for Ministerial Intervention (MI) under s 351 of the Act. The request was finalised on 11 October 2016 as ‘not referred’.
The Applicant then lodged a Protection Visa application on 14 November 2016 and was granted an associated Bridging Visa C (BVC) on 23 November 2016. On 19 December 2016, he requested to withdraw the Protection Visa application.
On January 2017, the BVC was cancelled as he had been convicted of criminal offences whilst in Australia. The cancellation of the BVC was set aside by the Tribunal.
On 5 September 2019, upon release on parole from Long Bay Correctional Centre and having served 4 years and nine months in prison, the Applicant was located by Australian Border Force officers, detained pursuant to s 189 of the Act and transferred to the Villawood Immigration Detention Centre, where he remains.
The Applicant lodged a second Protection Visa (Subclass XA 886) application on 11 September 2019. The application was refused on 14 October 2019 and on the same day he sought merits review of the Department’s refusal decision at the Tribunal. The Tribunal affirmed the delegate’s decision on 18 May 2020.
On 19 June 2020, the Applicant lodged an application for judicial review in relation to the decision to refuse to grant the Protection visa.
The Applicant applied for a bridging visa on 11 August 2020. The decision to refuse to grant the visa was made on 14 August 2020, on the basis that the delegate was not satisfied that the Applicant would comply with conditions imposed on the visa.
On 28 August 2020, the Tribunal (Case Number 2012857) decided to remit the matter for reconsideration with the direction that the Applicant meets the criteria for a Subclass 050 (Bridging (General)) visa imposing the conditions 8207, 8401, 8506, and 8564 if the visa were granted and to require a security of $20,000 for compliance with the conditions.
More recently, the Applicant claims to have sustained neck and back injury during 2021. He has applied for a medical treatment visa and has sought judicial review of a decision by this Tribunal (differently constituted) that it does not have jurisdiction concerning that application.
On 10 September 2021, the Department decided to refuse the bridging visa on character grounds. An appeal to this Tribunal for a review of this decision was lodged on 13 September 2021 and this is the current application before the Tribunal.
LEGISLATIVE FRAMEWORK
The sources of the Tribunal’s jurisdiction to review visa refusal decisions are s 25(1)(a) of the AAT Act and s 500(1)(b) of the Act.
Section 501(1) of the Act is one of several discrete powers conferred on the Minister. It provides for refusal to grant a visa where the Minister is not satisfied that an applicant passes the character test.
The issues before the Tribunal are:
a.whether the Applicant passes the character test as defined under s 501(6) of the Act; and
b.if so, whether it should exercise its discretion to refuse to grant the Applicant the visa under s 501(1) of the Act.
(A) DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. It refers to a range of matters that the Minister or the Minister’s delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’.
The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more.
It is not disputed by the parties that the Applicant has been sentenced to a term of imprisonment for a period totalling more than 12 months.[2] Accordingly, by operation of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test as a matter of law.[3]
(B) SHOULD THE DISCRETION BE EXERCISED?
[2] Applicant’s Statement of Facts, Issues and Contentions at [32] (ASFIC); Respondent’s Statement of Facts, Issues and Contentions at [24] (RSFIC).
[3] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Where an applicant has failed the character test, the Tribunal must then determine whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.[4] Guidance in the exercise of this discretion is found in Direction No. 90 – Migration Act 1958 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
[4] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
DIRECTION 90
The Direction provides guidance for decision-makers on how to exercise the discretion contained in s 501 of the Act. Relevantly, it states that:
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.[5]
[5] Direction [6]. See also Direction [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The Principles in Paragraph 5.2
Paragraph 5.2 of the Direction is designed to ‘provide a framework within which decision-makers should approach their task’ under ss 501 or 501CA of the Act.
Summarised where appropriate, the principles underpinning the Direction are:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;
(c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community);
(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age; and
(e)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.
Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;[6]
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.[7]
[6] This consideration is not relevant to this application.
[7] Direction [8].
The Other Considerations which, where relevant, must be taken into account ‘include but are not limited to’:
international non-refoulement obligations;
b.extent of impediments if removed;
c.impact on victims; and
d.links to the Australian community, including:
i.strength, nature and duration of ties to Australia; and
ii.impact on Australian business interests.[8]
[8] Direction [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(a)information from independent and authoritative sources should be given appropriate weight;
(b)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(c)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
…Direction 65 [a predecessor to Direction 90] 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.[9]
[9] Suleiman v MIBP [2018] FCA 594 (Colvin J, 2 May 2018) at [23].
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers, and in this instance, the Tribunal, to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
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.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(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)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(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 that is dependent upon the decision-maker’s opinion (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).
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant committed multiple sexual offences against women who were mostly his clients at his salon. I find that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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:
(ii)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(iii)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;
(iv)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(v)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.
In this respect I refer to the sentencing remarks of Judge Girdham of the District Court of New South Wales on 3 November 2017 which record that: [10]
(a)The Applicant’s crimes were “opportunistic, indecently assaulting vulnerable female victims who placed their trust in him with a total disregard for his professional role and his responsibility as a hairdresser and masseuse’, and he was “clearly on the lookout for opportunities to drive sexual pleasure from his unsuspecting clients”.
(b)The Applicant’s victims were “in somewhat of a vulnerable physical position”.
[10] G-Documents G7/65.
I consider that the Applicant’s victims included vulnerable members of the community as contemplated by the Direction, and I find that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider certain sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant The relevant sentences are referred to above in paragraph 17, and I have discussed further below in paragraph 63.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As I have referred above, the Applicant’s offending comprises numerous offences which commenced in February 2013. His most recent offence occurred on 16 November 2014, when he was on bail in relation to other sexual assaults. For completeness, I acknowledge that the Applicant has appealed the 16 November 2014 conviction. Judge Flannery’s sentencing remarks relate to offences committed against five women between 8 February 2013 and 7 May 2013.[11] Judge Girdham’s sentencing remarks relate to offences committed against three women between 28 March 2013 and 15 May 2013.[12] I consider that the most serious offending involved the victim who was assaulted on 28 March 2013. I find that the Applicant’s offending has been frequent and, when considered overall, involves a trend of increasing seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction.
[11] G-Documents, G8.
[12] G-Documents, G7.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
In addition to the effects on the Applicant’s victims, I consider that the Applicant's repeated acts have had a cumulative effect, especially in the context of the considerable resources required to hold him responsible to his repeated sexual offending. This includes the costs borne by the broader community to provide the police resources required, and the further expenses of the Courts, justice, and correctional systems.
I am of the view that the cumulative effect of the Applicant’s repeated offending enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. This consideration is not relevant to the Applicant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour). I do not understand the Applicant to have been formally warned or otherwise made formally aware in writing about the consequences of further offending with respect to his migration status.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.1(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Respondent contends that if the Applicant were to reoffend against women in the manner in which he has previously, the nature of harm that may result would include serious physical and psychological harm.[13]
[13] RSFIC, 9.
I consider that there is little to be said against the contention that the nature of harm to women, in the event of the Applicant re-committing similar or identical unlawful conduct would, without question, involve at the very least physical and psychological harm, with a more than realistic possibility of such harm resulting in devastating consequences.
The terms of the Direction have direct application to the facts of the Applicant in this case. Put simply, having regard to the Applicant’s repeated sexual offending against multiple victims, were that offending to be repeated its resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable.
I am of the view that reasonably minded members of the Australian community would regard the Applicant’s repeated sexual offending against multiple victims as so serious that they would refuse to accept any risk of recurrence.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In his oral evidence before the Tribunal, the Applicant said that he was advised to undergo rehabilitation by his sister and ex-girlfriend. He told the Tribunal that during his rehabilitation he began to think about what he put his victims through and said that it would not have been easy for them to see him on the camera as they gave evidence against him. He told the Tribunal that he experiences a sense of shame and is remorseful and sorry.
The Applicant said that he will not reoffend as he considers that he has lost seven years of his life and asked for a second chance. In cross examination, the Applicant said that he is not allowed to contact his victims, so he cannot apologise.
The Applicant’s Written Submissions contend that the Applicant’s risk of reoffending is low for the following reasons:[14]
[14] ASFIC, 7.
(a)the applicant has no prior criminal history for sexual offending and has discharged all his sentence;
(b)the applicant’s previous good character and prior to the offending had made positive contributions to the Australian community;
(c)apart from appealing a single conviction, the applicant has accepted and acknowledged the other convictions and his conduct;
(d)the applicant has expressed remorse and contrition;
(e)the applicant has recognised and acknowledged the harm caused to the victims. The applicant has also provided insight into his offending behaviour and conduct;
(f)Positive State Parole Authority assessment and parole conditions;
(g)the Applicant parole period has expired, and is not being place on the sex offenders register
(h)the applicant has a general record of compliance both in prison and in Immigration detention;
(i)since 1 November 2019, the applicant has been receiving treatment by Dr Mark Milic, clinical and forensic psychologist. Dr Milic has provided three separate reports and, in each report, opines that the applicant has low risk of re-offending;
(j)the applicant’s commitment to address his mental health condition. He has undertaken several rehabilitative initiatives and is eager to continue with further psychological treatment and therapy with his treating psychologist, Dr Milic;
(k)The applicant has had an opportunity both in prison and in immigration detention to reflect on this past conduct, character flaws and general attitude towards women;
(l)the applicant has good support network available to him upon his release into the community.
In a submission in reply to the RSFIC, the Applicant’s representative also referred to:
(a)The period of time that has lapsed since the 3 November 2017 sentencing (4 years) and the period of time that has lapsed since the last offending (exceeds 6 years and 10 months, with last offending having occurred in December 2014);
(b)The applicant has since engaged in ongoing psychological therapy (since 1 November 2019) with Dr Milic (Clinical and Forensic Psychologist) over an extended period of time as well as completing several other rehabilitative initiates during this period:
(c)Up-to-date psychological assessment in which Dr Milic opines that the applicant is “at low risk of reoffending and that his risk of reoffending could be further reduced with ongoing treatment in the community”;
(d)The applicants’ commitment to continue with rehabilitative courses if outside in the community and is consistent with STARTS psychiatrist’s view;
(e)The applicant’s low LSI-R rating and which meant that he was not eligible to complete any sexual offender’s courses or any other related courses,
(f)Despite toucher conditions for paroled sex offenders (G-10/88) in this case the State Parole Authority applied standard conditions including the applicant being released into the community, not being required to wear electronic tracking devices or stringent supervision;
(g)The applicant not being included on the sex offender’s register:
(h)The applicant has no prior criminal history for sexual offences and there is no evidence of major mental illness or a predisposition to offending of a sexual nature;
(i)The term of the applicant’s sentence and parole period has now been discharged;
(j)Ongoing support in the community, which will act as further disincentive to re-offend;
(k)The findings of the Tribunal in the remittal decision (case no: 20212857) (G24/245-254), dated 28 August 2020, in which the presiding Member concludes that on the evidence before it, the Tribunal is satisfied that the applicant will abide by conditions imposed on the visa if a security is taken (in the amount of $20,000).
I have taken into account each of these matters advanced on the Applicant’s behalf.
In addition to the Applicant’s oral assertions, the Applicant’s Written Submissions contend that the Applicant is remorseful, and the Applicant also makes this assertion in his personal written statement.[15]
[15] ASFIC, 8. A3.
I observe that the Applicant completed the Salvation Army Positive Lifestyle Program whilst he was in prison but found himself ineligible to complete other sexual offending courses in a correctional environment due to his LSI-R assessment score. I accept that the Applicant is currently enrolled to complete a course with Relationships Australia Victoria, and I have sighted the receipt for the $30 enrolment fee.
As I have mentioned above in paragraph 4, the Tribunal heard oral evidence from Dr Milic, the Applicant’s treating psychologist. Dr Milic told the Tribunal that he first interviewed the Applicant in November 2019 at the Villawood Immigration Detention Centre, treated the Applicant in 10 sessions throughout 2020 and has conducted two sessions with the Applicant more recently. He confirmed that he has produced three psychological reports relating to the Applicant. I have read and had regard to each of Dr Milic’s three psychological reports, dated 11 November 2019, 26 May 2020 and 9 October 2021.
I interpose here to observe that the Applicant also undertook a psychological assessment with psychologist Ms Bogicevic from STARTTS on 15 April 2020 and 20 April 2020. I have read and had regard to her written report.
In his report of 11 November 2019, Dr Milic categorised the Applicant’s risk of reoffending as having a Static-199R score at level 5; referring to statistical analysis that 85% of individuals at this level remain free of sexual offending in five years.
In his report of 11 November 2019, Dr Milic states:
[The Applicant] has good prospects of progressing further in his rehabilitation and been integrated into the Australian community. His prospects for rehabilitation are enhanced by his supportive relationship with his partner, family and friends, realistic plans for the future, and willingness to participate in psychological treatment.
In his report of 9 October 2021, Dr Milic states:
[The Applicant] has continued to progress well in his rehabilitation. He is ready for reintegration into the community. He has the skills to avoid reoffending and he will be highly motivated to do so. He is motivated to avoid reoffending because he found the experience of gaol and detention very aversive. Moreover, he would not want to jeopardise his chances of getting married and having children.
I accept that Dr Milic is of the view that the Applicant’s risk of reoffending could be further reduced by ongoing treatment in the community.
I am mindful of the support that the Applicant could receive in the community and of the support of the Applicant’s family, which is discussed below.
Significantly, in his oral evidence, Dr Milic conceded that there was a risk that the Applicant would reoffend if he returned to work in a women’s salon environment. Dr Milic told the Tribunal that the Applicant could safely work as a barber in a men’s salon environment. For completeness, I observe that the Applicant would be unable to work on the relevant bridging visa.
The Respondent contends that there remains a significant and unacceptable risk of the Applicant reoffending.
The Respondent’s Written Submissions highlight that, in the context of the beforementioned criminal proceedings, an independent psychologist, Dr Peterson, rated the Applicant’s risk of reoffending as a male adult sex offender as moderate to high.[16]
[16] G-Documents, G7/61.
The Respondent’s Written Submissions also highlight that, whilst in custody, a psychologist, Dr Furst, found that the Applicant had “no insight, no empathy for the victims and no remorse”.[17]
[17] Ibid.
The parties each made submissions in relation to an incident which occurred whilst the Applicant was in detention, where the Applicant is reported to have kissed an officer. This incident was referred to in progress notes for a Mental Health Consultation on 22 July 2020. In his evidence, the Applicant admitted to his actions during this incident I accept that the Applicant was, as he contends, expressing gratitude to the officer. Nevertheless, the conduct was inappropriate and does go to the likelihood of reoffending due to the nature of the act. Otherwise, I accept that the Applicant has mostly been polite and friendly towards detention staff and other detainees.
The Applicant had a long-term relationship with a girlfriend, with that relationship having broken down recently. In the sentencing remarks of both the District Court judges who sentenced the Applicant, they each made reference to the Applicant’s long-term partner assisting in his rehabilitation and to some degree mitigating concerns about his relationship with women.
The Applicant expressed a desire to turn his life around and resume his relationship with his ex-girlfriend. For completeness, I observed that the relationship with the ex-girlfriend commenced in 2012 and was ongoing throughout the period of offending and, as such, I do not consider this a significant factor likely to reduce the likelihood of the Applicant engaging in further criminal or other serious conduct.
Overall, I do not accept that the Applicant’s (newly found) assertions of remorse are genuine. I acknowledge that the Applicant has engaged in psychological therapy. However, having listened to the Applicant, I am not convinced that he has the degree of insight into his offending as he would like the Tribunal to believe. In all the circumstances, I consider that notwithstanding the rehabilitative benefit the Applicant may have received, it falls short of the level necessary for the Tribunal to conclude that he would be unlikely to engage in further criminal or other serious conduct.
Conclusion: Primary Consideration 1
I find that:
(a)the nature of the Applicant’s offending is very serious;
(b)were the Applicant to reoffend in a similar way, the nature of the resulting harm would involve very serious physical and/or psychological harm to the Australian community, quite conceivably, to a devastating level; and
(c)in terms of risk of recidivism, there is a reasonable likelihood that he will engage in further very serious offending if returned to the Australian community.
98.In consideration of all the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration 1 weighs very strongly in favour of refusal.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCEParagraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen.
It is not contended that the Applicant has engaged in conduct constituting family violence and, as such, this consideration neither weighs in favour nor against refusal.
Conclusion: Primary Consideration 2
This Primary Consideration is not relevant to the application at hand.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN
Paragraph 8.3 of the Direction provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction continues to outline the factors that a
decision-maker must consider when determining the best interests of a child affected by the decision:(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Analysis and Conclusion: Primary Consideration 3
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA is in the best interests of a child affected by the decision.
The Applicant’s Written Submissions contend that the Applicant has a young niece, born in 2006.
It was submitted on the Applicant’s behalf that the interests of the niece would be served if she were allowed the opportunity to continue to develop a relationship with the Applicant.
The Tribunal heard oral evidence from an adult niece – the sister of the younger niece – who confirmed the relationship between the Applicant and his family. This was supported by other evidence of the family.
The Respondent asked the Tribunal to consider that the relationship is non-parental and that the Applicant has spent a portion of his niece’s life in prison and in immigration detention. The Respondent also asked the Tribunal to take into account that the Applicant would be able to maintain a relationship with his niece by electronic means should he be returned to Lebanon.
Overall, I consider that the mere presence of family in Australia can be significant for minor children. As such, I find that this Primary Consideration weighs slightly against refusal.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[18] The Direction further states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[19]
[18] Direction, [8.4(3)].
[19] Ibid [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that ‘the Australian community expects non-citizens to obey Australian laws while in Australia’. The second proposition is that:
where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction states that a:
visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I also note, based on the principles in paragraph 5.2 of the Direction, that:
(a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[20]
(b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[21] and
(c)The nature of a 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 a visa outcome adverse to the non-citizen.[22]
[20] Ibid, [5.2(4)].
[21] Ibid.
[22] Ibid, [5.2(5)].
The Respondent contends that the Australian community would expect that the Applicant should not hold a visa on account of his past offending in addition to the risk of further offending and infliction of harm.
Analysis – Allocation of Weight to this Primary Consideration 4
I refer to my other observations above, namely that the Applicant has already faced court in relation to multiple instances of sexual offending. I consider that this amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, I consider that by virtue of paragraph 8.4(1) of the Direction, the Australian community as a “norm” would expect the Government to remove the Applicant.
The next question I must consider is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa.
The Applicant’s representative submitted that the Tribunal should take into account that the Applicant has gone to the assistance of other persons taking their own lives whilst he has been in prison. I accept that this is the case and I take this into consideration.
Otherwise, other than matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community.
Overall, I consider that this is a case that engages the principle in paragraph 5.2(5) of the Direction:
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.
Conclusion: Primary Consideration 4
In consideration of all the evidence and each of the relevant factors contained in the Direction, I find that this Primary Consideration weighs very strongly in favour of refusal.
OTHER CONSIDERATIONS OF THE DIRECTION
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International Non-Refoulement Obligations
Paragraph 9.1 of the Direction sets out that a decision-maker should weigh any non-refoulement obligations that Australia owed in respect of the Applicant against the Applicant’s criminal offending.
The Applicant’s representative advised the Tribunal on the first day of the hearing that he did not seek to press any consideration of previous non-refoulement claims on this application before the Tribunal.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account
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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
I will address each of the three main components of this Other Consideration in turn.
First, it is necessary to consider the Applicant’s age and state of health.[23]
[23] Direction, [9.2(1)(a)].
As referred to above, the Applicant is 39 years of age.
In his written statement, the Applicant claims to be “currently suffering from a number of medical conditions including, chronic back, neck and shoulder pain, liver problems, high blood pressure, enlarged prostrate, high cholesterol as well as heart problems”. He claims to having been prescribed several medications in relation to his prostrate, heart, back, neck and shoulder conditions. I have already made reference above to PTSD, although I observe that no formal diagnosis has been provided.
I accept that the Applicant experiences anxiety and depression for which he has sought psychological treatment. Notwithstanding his mental health issues, I consider that the Applicant’s overall physical abilities should allow him to work. Indeed, as I referred above, Dr Milic gave evidence that the Applicant could work in a men’s barber type shop (if he had work rights).
Second, it is necessary to consider whether there are any ‘substantial language or cultural barriers’[24] to the Applicant returning to Lebanon. The Respondent highlighted that the Applicant came to Australia from Lebanon as a mature 29-year-old. That is, the Applicant has previously lived, studied and worked in Lebanon. A significant portion of his family continue to live there.
[24] Direction [9.2(1)(b)].
In his written statement, the Applicant claimed that he would be at a high risk of contracting COVID-19 if he were returned to Lebanon. He also claimed that he would be denied access to money due to the financial and banking crisis in Lebanon.
I consider that any difficulties the Applicant would face in re-establishing himself in Lebanon would be temporary. I do not consider the Applicant would be at any greater risk of contracting COVID-19 or being impacted by the financial and banking crisis than any other person. As a citizen of Lebanon, I consider that the Applicant would be able to obtain medical treatment in the same way as any other citizen of Lebanon. As such, I consider that this factor weighs only slightly against refusal.
(c) Impact on Victims
Paragraph 9.3(1) states that
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.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors:
(1)9.4.1. the strength, nature and duration of ties to Australia; and
(2)9.4.2. the impact on Australian business interests.
9.4.1. Strength, Nature and Duration of Ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any refusal decision on the Applicant’s immediate family where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a refusal decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia.
In the Applicant’s Written Submissions, the Applicant contends that his sister is an Australian citizen who resides in Australia with her husband and three children. I observe that the Applicant’s mother is currently residing in Australia on a temporary visa.
The Tribunal heard oral evidence from the Applicant’s sister who is a teacher. The Applicant’s sister told the Tribunal about her close relationship with the Applicant. She cares for the Applicant’s mother and told the Tribunal that the Applicant would also be welcome to live with her and her husband, and their three children - a girl aged 21, a boy aged 18 and a girl aged 15.
As I have referred to above, I accept that the Applicant had a long-term relationship which has broken down only recently. I accept that the Applicant continues to maintain a friendship with this ex-girlfriend.
I accept that the Applicant also has a number of cousins who continue to reside in Australia.
In terms of other ties, I accept that prior to his offending, the Applicant employed four local hairdressing staff and two apprentices. I accept that he also leased two rooms at the same property to other businesses.
I have read and had regard to the letter provided from the St Raymond Charity of Hadchit concerning the Applicant’s involvement with that organisation.
I also accept that the Applicant developed associations with other inmates whilst in prison, evidenced by his involvement in the Inmate Delegate Committee meeting which occurred on 19 January 2017 where the Applicant was chosen to vote and make decisions on behalf of other inmates.
I accept that the Applicant has developed friendships within the Australian community. Several of his friends provided statutory declarations attesting to their relationship with him. I have read and had regard to each of the statements which comprise Attachment F.[25]
[25] ASFIC.
The Applicant’s Written Submissions make reference to the impact a refusal decision would have on the Applicant’s mother. As I have mentioned above, the Tribunal also heard oral evidence from the Applicant’s mother. Whilst I accept that the Applicant’s mother suffers from ill health, and that the Applicant could assist her if he were present, she is not someone who has an indefinite right to remain in Australia (to which the Direction refers).
Overall, I find that the Applicant’s ties to Australia weigh slightly against refusal.
9.4.2 Impact on Australian Business Interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia, with particular reference to any impact his removal may have on Australian business interests. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can generally only be allocated in this instance where a refusal decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
I do not consider this consideration relevant to this application.
Weight allocable to Other Consideration 4: links to the Australian community
With reference to these Other Considerations, to the extent that any of them may weigh against refusal, they are outweighed by Primary Considerations 1 and 4, each of which weigh in favour of refusal. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)International non-refoulement obligations: neutral;
(b)Extent of impediments if removed: slight weight against refusal;
(c)Impact on victims: neutral; and
(d)Links to the Australian community: slight weight against refusal.
CONCLUSION
I am now required to weigh all of the considerations in accordance with the Direction.
I find as follows:
(a)Primary Consideration 1: weighs very strongly in favour of refusal;
(b)Primary Consideration 2: neutral;
(c)Primary Consideration 3: weighs slightly against refusal;
(d)Primary Consideration 4: weighs very strongly in favour of refusal;
(e)The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the weight that it has attributed to the Primary Considerations as stated above.
Consequently, I exercise the discretion to refuse the visa application.
DECISION
The decision under review is affirmed.
156.
I certify that the preceding 155 (one hundred and fifty five) paragraphs are a true copy of the written reasons for the decision of Senior Member P.Q. Wood
.............................[SDG].......................................
Associate
Dated: 4 January 2022
Dates of hearing:
11 and 12 November 2021
Advocate for the Applicant:
Mr Issa
Solicitors for the Applicant
Firmstone and Associates
Advocate for the Respondent:
Mr Cunynghame
Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Remedies
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Standing
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