HJCS and Minister for Home Affairs (Migration)

HJCS and Minister for Home Affairs (Migration) [2018] AATA 3784 (11 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4146
Re:HJCS
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:11 October 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the applicant not be refused a Temporary Protection (Class XD) visa under section 501(1) of the Migration Act 1958.
....................[sgd]................................
Senior Member

Catchwords
MIGRATION – temporary protection visa refusal – failure to pass the character test – whether discretion to refuse visa should be exercised – risk of reoffending – expectations of the Australian community – international non-refoulement obligations – decision under review set aside
Legislation
Migration Act1958 (Cth)
Cases
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Do v Minister for Immigration and Border Protection [2016] AATA 390
Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75
Secondary Materials
Direction No. 65, Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Instrument made on 22 December 2014).
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
11 October 2018
INTRODUCTION

This is an expedited review of a decision to refuse an application for a Temporary Protection (Class XD) visa under s 501(1) of the Migration Act 1958 (the Act). In accordance with s 501K(1) and (2) of the Act which restricts the Tribunal from publishing any information which may identify a person or any relative or other dependant of a person who has applied for a protection visa, the applicant in this matter has been assigned the pseudonym ‘HJCS’.
The application was previously rejected under s 65 of the Act by a delegate of the Minister for Immigration and Border Protection. The application was then reviewed by the Migration and Refugee Division of the Tribunal (the MRD). The MRD remitted the matter back to the Minister for reconsideration with a direction that the applicant was a refugee within the meaning of s 5H(1) of the Act.
On reconsideration, the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection refused the application on the basis that the applicant fails the character test under section 501(1) (the Relevant Decision). It is the Relevant Decision that is the subject of this review.
BACKGROUND
The applicant’s life history
The applicant is a 58 year old Iranian woman who arrived in Australia as an unauthorised maritime arrival on 1 November 2011.
She has been held in immigration detention since her arrival, a period of some 2 536 days or 6 years and 11 months.
The applicant was born in Iran and raised as a Shia Muslim.
The applicant has siblings currently residing in Canada, the USA and Germany. She has a son living in Canada. Both her parents are deceased. She has no immediate family still residing in Iran.
The applicant’s mother died of cancer when she was 14 years of age. As a result the applicant was forced to leave school early and took on significant household responsibilities. Consultant psychologist Mr Watson-Munro gave evidence to the Tribunal that the death of her mother was a seminal traumatic event that occurred at a crucial stage in the applicant’s juvenile development (Exhibit A3 page 4).
The applicant married for the first time when she was 20 and had her first child, a daughter, the following year.
In about 1982, when her daughter was 14 months old, the applicant was involved in a serious car accident. Her daughter was killed and her first husband suffered horrific injuries and became a quadriplegic. Based on the applicant’s evidence, she struggled very significantly with the loss of her daughter and also with the ongoing stress and difficulties associated with caring for an invalid husband. She nursed her husband for about five years but found the situation increasingly difficult to deal with. The couple separated, and subsequently divorced. Her husband was provided with long-term hospital care by his family, prior to his death in 1988.
Her siblings began leaving Iran in the late 1980s and a number of them sought asylum in Canada. The basis of their application for asylum was concern about persecution by the Iranian authorities as a result of political activities that a number of the family had been involved in that would be seen as adverse to the Iranian Government. It is clear that there was also a concern about the brothers being forced to go to war.
In around 1989, the applicant together with one brother left Iran illegally and sought asylum in Canada, having travelled via Turkey and then onto Canada on a forged Spanish passport. They arrived in Canada on 31 May 1991. The applicant successfully sought asylum on the basis of concern of persecution as a result of her participation in political activities, in particular assisting her activist brothers to paste pamphlets advocating for the policies of Mujahedin-e Khalq (MKO) on city walls.
Shortly after her arrival into Canada, the applicant’s then boyfriend, also an Iranian national, followed. He sought asylum as her dependent.
The applicant and her boyfriend married in Montreal in late 1991. The applicant’s second child, a son, was born in May 1992.
When her son was about six months old the applicant committed an assault. The offence involved her stabbing a woman she had unexpectedly found in bed with her husband. The applicant provided significant detail of the circumstances surrounding the incident in her oral evidence and also in her statutory declaration dated 18 December 2017.
As summarised in the respondent’s closing submissions: the applicant describes being deeply shocked, upset and angry, and withdrew to the nearby kitchen. The lovers followed her into the kitchen in an attempt to calm her down, and the applicant told the Tribunal that she grabbed a sharp kitchen knife, pulled the woman down by her hair, and when lashing out angrily in her husband’s direction, unintentionally stabbed the woman in the chest, cutting a piece of flesh that fell to the ground and causing a major bleed.
The Tribunal did not have the benefit of sentencing remarks from the sentencing judge and details relating to the assault conviction provided by the Canadian authorities were scant. The applicant told the Tribunal that she was held for a brief period, followed by an extended period of probation with a condition imposed that she undergo psychiatric treatment.
The assault appears to have given rise to another very difficult period in the applicant’s life. The applicant separated from her husband and lived for a period in a hostel where she could care for her baby son. She struggled to manage day-to-day. A restraining order was taken out against her by the victim of the assault. The victim’s husband initiated court proceedings in pursuit of an insurance pay-out arising from his wife’s injuries.
The Canadian immigration authorities became aware of the applicant’s offence and she was denied a permanent visa but was allowed to remain in Canada on a temporary visa which was renewed year-to-year.
There is evidence that at this time the applicant fell into a deep depression which impacted on her mood and perception of events (exhibit A3 pages 8-9). It was during this period that the applicant was involved in a series of low-level-theft related offences. She was sentenced to 13 months imprisonment in 1995 arising from the breach of her probation conditions, of which 7 months were served plus 3 months community service (exhibit R1 page 116).
In reliving these events at the hearing, the applicant expressed a significant sense of shame and embarrassment for her actions, as well as a deep sense of betrayal in relation to her husband’s conduct.
It was during this period of her life that the applicant first became involved in church‑related activities. Her engagement was through her sister and she was particularly focussed on exposing her son to Christianity. She claims that the friendships she made through this engagement were important for her during a very difficult part of her life.
The applicant returned to Iran sometime between 2005 and 2007. The applicant claims to have returned in 2005. There was initially conjecture from the respondent regarding the timing and circumstances of her departure from Canada and arrival back to Iran. However, the respondent appears to have accepted the applicant’s account in its closing submissions. The respondent initially suggested at the hearing that the existence of a 2007 titre de voyage (or official travel document), was evidence that the applicant had not left Canada in 2005 as she had said. The respondent also submitted that the existence of the document was an oversight of the MRD in its finding on the applicant’s refugee status.
Unfortunately, the copy of the document available at the hearing was of very poor quality and the applicant was not able to be meaningfully cross-examined on it. In its closing submissions, the respondent concedes that the document is not evidence of the applicant’s ongoing presence in Canada and that the MRD decision should not be impugned because of its existence.
When the applicant returned to Iran, she did so with her son who was then around 12 years old. She returned in order to care for her dying father, who passed away shortly after her arrival.
The applicant told the Tribunal that upon her return to Iran she had been detained for having left Iran illegally in 1989. Her Iranian passport was impounded, and her Canadian travel documentation seized and sent to the Canadian embassy. The applicant’s father provided his house deeds to the court as surety to secure her release.
The applicant was not able to return to Canada while her passport was impounded. She made the decision to return her son to Canada in order to allow him the opportunity to continue his studies and because she didn’t consider Iran to be an appropriate environment for him. There is evidence that the applicant suffered very considerable distress at the separation from her son and again fell into depression.
The applicant had significant difficulties with the authorities on her return to Iran due to her prior illegal departure and also due to her ongoing involvement in low-level political activities that could be seen as critical of the Iranian Government. The applicant told the Tribunal that she spent time in prison as a consequence of these activities.
The applicant became increasingly concerned about her safety in Iran and left, for the second time, illegally. She embarked on a trip to seek asylum in Australia travelling via Turkey and Indonesia and ultimately arriving in Australia on a small boat on 1 November 2011.
The applicant described her journey on a small boat from Indonesia to Christmas Island as a very difficult and frightening one. She described clinging to the side of the boat for fear of drowning. She was unable to sleep or eat for the entire journey.
In the course of this proceeding, the Tribunal had the benefit of observing the applicant give evidence, including under cross-examination. The Tribunal found her evidence to be credible. The Tribunal’s overall assessment of the applicant is that she is fundamentally a decent person who is dealing with very real mental health issues and who, on any assessment, is struggling to cope with what has been a very difficult and traumatic life. Having carefully listened to her oral evidence and considered all of the materials before it, the Tribunal is satisfied that the essential facts of the applicant’s life history as described above are true.
Mental health issues
During the course of the hearing the Tribunal had the benefit of two expert psychologists, Mr Guy Coffey and Mr Tim Watson-Munro, who were able to assist in understanding the applicant’s mental health issues. The Tribunal also had before it extensive clinical records from IHMS which document, in some detail, each of the applicant’s interactions with health professionals during her time in detention.
The key conclusions from this evidence are as follows:
(a)The applicant’s traumatic life experiences including the loss of her mother at age 14 and her baby daughter at age 21, the betrayal by her husband and the circumstances surrounding the assault offence and its aftermath, her likely post‑natal depression, the death of her father and separation from her son, as well as her difficulties in Iran and the circumstances of her arrival into Australia, all contributed to her psychological vulnerability on entering into detention.
(b)Over the course of her detention there has been an escalation of her mental health issues, culminating at various points in specific disorder diagnoses. These have been well documented by Mr Coffey in his report dated 9 September 2018 and can be summarised as follows:
(i)Early in her detention the applicant reported feeling depressed, experiencing menopausal symptoms and missing her son.
(ii)After about five months of detention she was assessed as experiencing an Adjustment Disorder with depressed mood. Again, her lowered mood was attributed to missing her son.
(iii)By August 2012 she was found to have deteriorated further, and there was concern about self-harm.
(iv)In September 2012 the applicant was found to be suffering depression and was pre-occupied with feelings of “injustice and hopelessness”. She was diagnosed with Adjustment Disorder and an Acute Stress Disorder and was commenced on an anti-depressant.
(v)In October 2012 the psychiatric opinion was that the applicant “experiences mood disorder, anxiety and episodic mood lability associated with her history of multiple psychosocial adversities and traumas, as well as the loss of her parenting role and grief over the distance from her son in Canada…”
(vi)In November 2013 the applicant was identified for the first time as suffering from Obsessive Compulsive Disorder (OCD). She was noted to be cleaning obsessively in an unsafe manner and stealing food from others.
(vii)In January 2014 she was noted to be suffering from OCD and depression and continued to receive anti-depressant and anti-psychotic medication.
(viii)Mental health assessments throughout 2014 noted her depression and frustration, her difficulty coping with the detention environment, her missing her son, and her physical problems including the effects of menopause.
(ix)In November 2014 a psychiatrist found that the applicant was suffering from OCD and depression and recorded that “…she misses her son and freedom. She is frustrated and demoralised…She complains of severe anxiety, somatic symptoms such as headaches, sweating, pains and aches in her body...Her memory is poor and she feels lethargic. She continues washing everything repeatedly. She feels very anxious if she stops it”.
(x)Through 2015 the applicant continues to struggle with depression and OCD. Her compulsive behaviours were described as “my skin is so sensitive so I have to wash everything twice” and “other people’s things get dirty and I don’t want to look at it so if they don’t clean it I throw it away”. She was allegedly protective of the washing machine and was washing other people’s clothes.
(xi)In May 2017 it was noted that the applicant was cleaning the centre bathrooms every evening and sometimes also in the morning; that she showered three times a day; that she washed her lower body each time she went to the toilet; that she washed her hands repeatedly when she believed they were contaminated; and if there were searches and her clothes were touched, she washed all of them. She would feel increasingly angry if prevented from washing.
(xii)In August and September 2017, the applicant received six sessions of psychological treatment directed at her OCD. It appears the treatment provided some temporary benefit. However, her compulsions rapidly re‑emerged.
(xiii)In May 2018 the applicant was noted to have little understanding of why her cleaning might upset others. She said she needed to clean the washing machine because other detainees might be menstruating.
(xiv)In July 2018 there was an alleged altercation with another detainee which started, according to the applicant, after the detainee touched her belongings in order to upset her (extracted from exhibit A4 pages 6-9).
The consensus of the two expert psychologists was that the applicant’s OCD has emerged through the course of her detention and that it has done so as a control response to her depression, anxiety and stress associated with extended detention and inability to physically reconnect with her son. Similarly, they agreed that psychological and pharmacological treatment of the applicant’s condition was unlikely to be effective while the applicant remains in detention and that, even if released, the applicant will require treatment and broader social support.
Spitting and biting offences
It is clear on the evidence before the Tribunal that the applicant has had difficulty from a behavioural perspective in the detention environment. This has fluctuated over time and there was testimony from both Mr Coffey and Mr Watson-Munro that the applicant’s intensifying mental health concerns, in particular the OCD, have contributed significantly as a causal factor and also help to establish context.
The most serious behavioural incidents culminated in the applicant being convicted in the Court of Summary Jurisdiction of [State] of two counts of “assault a worker – victim suffers harm” for which she was sentenced to two months imprisonment which was served in full.
These incidents have consistently been referred to as the ‘spitting offence’ and the ‘biting offence’.
The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind a conviction and examine the facts upon which it is based. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters that give context to a conviction. In seeking to fully understand the nature of the offending it is also important to carefully consider the sentencing remarks of the presiding Judge or Magistrate.
In this regard, the Tribunal notes the following:
In respect of the spitting offence
(a)The offence involved the applicant being approached by guards and queried about smuggling food out of the mess hall. The applicant became upset, shouted at them, swore at them and, on the evidence, the Court found she racially vilified at least one of the guards (exhibit R2 page 333).
(b)The Court stated that the applicant behaved “histrionically, abusively, swearing and generally being a very difficult person to manage…” and noted that the guards have a “difficult role to maintain order” (exhibit R2 page 333). The Court made no finding as to whether the applicant actually did smuggle food from the mess hall but found that she was suspected of it and that the spitting was deliberate and that the applicant did not show remorse (exhibit R2 page 334).
(c)The Court acknowledged “very firmly” some of the context for the applicant’s offending. It noted the “undoubted reality that anybody in this situation is living generally speaking, under stress and their reactions may be more florid or impulsive or ill-considered than if they had more control over their own lives”.
(d)The Court did not have before it evidence of the applicant’s mental health conditions. As noted by Mr Coffey, evidence of the applicant’s conditions “while clearly not excusatory, provide further context to the offending and to an extent explain the intensity of her response to the officer’s confronting her about smuggling food (exhibit A4 page 11). Mr Coffey notes:
[The applicant’s] OCD emerged in 2013. Together with her compulsion to clean and a powerful need to remain in contact with her son, she has demonstrated a strong preoccupation with controlling what food is available to her. Through the course of her detention many incidents have arisen due to her desire to have more or different food or to be able to consume it in her room. This may be in part due to her wanting to maintain an area of her life in which she has control, in circumstances in which she has been largely powerless. It is likely her mental state has magnified this need, in particular her OCD. This condition is a mental disorder in which intense anxiety attaches to a need to control discrete elements of the environment which are compulsively thought about, ordered and checked. The person becomes highly intolerant of unpredictability in relation to what she seeks to control. (Exhibit A4 page 12).
In respect of the biting offence
(a)The offence involved the applicant assaulting an immigration detention officer by grappling with her and biting her forearm in an attempt to retrieve a mobile phone. The incident happened the day after the spitting incident.
(b)The victim had searched the applicant’s room and recovered a mobile phone which the applicant had hidden and which, owing to her status as an unauthorised maritime arrival, she was not entitled to.
(c)The Court does not appear to have found that the victim’s skin was punctured but notes “bruising and soreness”. The Court found that it did not constitute ‘physical harm’ as prescribed by the relevant legislation (exhibit R2 page 335).
(d)The Court found that the applicant pursued her desire for the mobile phone without regard for the well-being of the victim and has shown no remorse.
(e)The Court noted that the applicant’s actions were “motivated by her powerful feelings of desire to speak to her son”.
(f)Again, as noted by Mr Coffey:
In my view, the same set of mental health and circumstantial considerations applicable to the first offence were operating here, and that again, while they are clearly not exculpatory, they do assist in understanding the offending. When interviewed she said the phone was borrowed from a detainee couple, and that she had used it daily for some months to call her son. The anger and distress invoked by being deprived of her most direct means of communication with her son is likely to have been heightened significantly by her precarious mental state. (Exhibit A4 page 13).

In her evidence before the Tribunal, the applicant continued to be very defensive in relation to the spitting and biting offences and sought, on more than one occasion, to present her version of events which were clearly at odds with the sentencing Magistrate. However, the applicant also, at one point, sought to apologise for her behaviour surrounding the incidents. She also spent some time seeking to explain the broader context in which the incidents occurred stating that she was “really sick and very unwell” at the time and that she was under strain as a consequence of personal abuse she had been receiving from other detainees who had recently joined her at the facility.
Without diminishing the seriousness of these offences, the Tribunal considers it appropriate to acknowledge the mental health issues that the applicant was suffering at the time. It is clear on the evidence that the applicant was suffering from serious depression and anxiety and had also developed OCD, which was contributing to extreme behaviours in relation to food and in a visceral need to maintain contact with her son. These factors provide relevant context to the offending.
ISSUES FOR CONSIDERATION
The issue before the Tribunal is whether the applicant fails to pass the character test as provided for in s 501(6) of the Act, and if so, whether the available discretion should be exercised to refuse to grant the applicant a Temporary Protection (Class XD) visa under s 501(1) of the Act.
As noted in the respondent’s Statement of Facts and Contentions, in undertaking the review the Tribunal is subject to the provisions of Direction No. 65, as made under s 499 of the Act on 22 December 2014 (Direction 65), which provides policy objectives, general guidance and a set of principles that together constitute a framework within which decision-makers should approach the task of deciding whether to exercise the available discretion to refuse to grant a visa under s 501.
CONSIDERATION
Character Test
In accordance with s 501(1), the Minister may refuse to grant a visa to a person if the person does not pass the “character test” as defined in section 501(6).
A person will not pass the character test under s 501(6)(d)(i) where, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. Relevant to section s 501(6)(d)(i) is the degree of risk a person poses. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 relevantly states:
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 provide that it amounts to a significant risk.
Further guidance is provided in Annex A to the Direction, which relevantly says at paragraph 6(2) and (3):
(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 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.
It was acknowledged by the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75 that a low risk may still be a real risk. The Court held at [22] that:
As appears from the observations of Mason J. in Wyong Shire Council v Shirt, there is no inconsistency in finding that a risk is real, in the sense that it is not far‑fetched or fanciful, yet the degree of probability of its occurrence is quantitatively low. Such a course is rationally open provided that the word “real” is used in a qualitative and not a quantitative sense to describe the risk.
The Canadian assault and the Australian spitting and biting offences involved acts of violence which can properly be described as criminal conduct. The Tribunal accepts that each of these offences occurred in specific circumstances which are unlikely to be repeated if the applicant were to be released into the community. However, the offences also evidenced a difficulty on the part of the applicant to effectively regulate her behaviour in stressful or emotionally charged situations. The applicant’s prior offending must therefore be viewed as indicative of a heightened potential for future reoffending.
The likelihood of the applicant reoffending was specifically addressed by the two expert psychologists at the hearing. Both experts concluded, having regard to the applicant’s prior offending and her mental health condition, that there remains some risk of the applicant reoffending. Both the psychologists assessed the risk as ‘low’. However, this quantitative assessment was conditional on the applicant continuing to receive appropriate mental health treatment (exhibit A4 page 23 and exhibit A3 page 12). The Tribunal does not accept their evidence as suggesting that the risk of reoffending is ‘minimal or trivial’. The Tribunal also cannot be certain the applicant will receive the ongoing mental health treatment that she will clearly require. For these reasons the Tribunal is satisfied that there remains a risk of the applicant engaging in further criminal conduct that is more than minimal or trivial. On that basis the Tribunal finds that the applicant does not pass the character test as set out in s 501(6)(d)(i) of the Act.
Direction 65 – Part B
Having determined that the applicant does not pass the character test, the Tribunal must determine whether to exercise the discretion to refuse the applicant’s visa under s 501(1). In so doing, the Tribunal must consider the guidance provided in Direction 65 – Part B.
Primary Considerations
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of Direction 65 provides that when decision-makers are considering the protection of the Australia community they:
…should 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision‑makers should also 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 conduct
Section 11.1.1(1) of Direction 65 further provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c)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 against section 197A of the Act;
d)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;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal notes that in considering the nature and seriousness of the applicant’s criminal offending, any offences that can be considered violent in nature are to be viewed seriously.
There is no doubt that the Canadian assault and the Australian spitting and biting offences must be viewed as involving a degree of violence and therefore they must be viewed as serious.
In relation to the Canadian assault, very little is known about the circumstances of the offence or the seriousness of the injury to the victim other than the detail provided by the applicant. However, even by her own account, the assault involved some form of cutting or stabbing injury to an un-armed woman. The Tribunal does not have any reliable evidence of the extent of the victim’s injuries, although the respondent appears to have accepted in its closing submissions that the victim did not receive any life‑threatening injuries. The Court considered the offence to be serious enough to warrant an extended probation period culminating in a term of imprisonment, but the Canadian authorities did not consider the offending to be so serious as to warrant revoking the applicant’s refugee status at the time (respondent’s closing submission page 6).
The applicant’s submissions note that the offence occurred “a very long time ago” and must be seen in the context of the emotionally provocative circumstances in which the offence occurred; and also the likelihood that the applicant was suffering some form of post-natal depression at the time:
Mr Coffey, psychologist, has surmised that, having recently had a baby at the time of the offence, the applicant’s mental state “was not so severe as to cause her to be not guilty by reason of mental impairment but severe enough for the court to order treatment. It is possible that her earlier losses, most importantly the loss of her mother and her first child, made her susceptible to post-natal psychological problems”. (Applicant’s statement of facts, issues and contentions (SFIC) page 12).
In relation to the Canadian shoplifting offences, I accept the applicant’s submission that they were of a very minor nature and occurred a long time ago at a difficult time in the applicant’s life and therefore they should carry very little weight in the Tribunal’s deliberations.
The Tribunal has significantly greater concern in relation to the spitting and biting offences. There is no question that these offences involve a violent element; they occurred in detention and were committed against Immigration Detention Officers. Each of these factors suggests a higher level of seriousness. This is reinforced by the comments of the sentencing Magistrate, who described the spitting incident as a “relatively serious assault” (exhibit R2 page 333) and the biting incident as an “offence of even greater seriousness” (exhibit R2 page 334).
The respondent’s submissions note the applicant’s persistence in providing an alternative account of the incident to that which was accepted by the Court.
The applicant’s submission in relation to the spitting incident was that “It was an unpleasant thing to do, and no doubt caused momentary “disgust, horror, outrage and shame” in the victim, but there is no evidence of any ill-effects” (applicant’s SFIC page 13).
The applicant’s submission in relation to the biting incident contends that “There was no evidence of any serious injury to the [immigration detention] officer; the magistrate finding at SG 335 that she did not suffer any physical harm within the meaning of the Sentencing Act [State]. The applicant’s ability to inflict serious injury by biting must be taken to have been limited, given medical evidence of her poor dental health at around that time. At most, the bite undoubtedly hurt, and left a bruise which took some weeks to fade, but it certainly did not result in any prolonged injury” (applicant’s SFIC page 15).
In relation to both offences, the applicant’s submissions make strong reference to the applicant’s mental health issues at the time of the offending and the unusual circumstances in which each of the offences occurred.
The Tribunal acknowledges that the applicant’s offending occurred in circumstances involving either provocation or in the difficult and stressful confines of detention and against a backdrop of very difficult mental health issues. With respect to the spitting and biting offences, the applicant’s mental health issues, while not a complete excuse, go a long way to helping to explain how those incidents occurred. I am also satisfied that there is no established trend or evidence of increasing seriousness.
Notwithstanding this, and having carefully considered all of the evidence, the Tribunal is satisfied that the applicant’s offending is of a sufficiently serious nature to raise concerns about the safety of the Australian community should the decision to refuse the applicant’s visa be overturned. While having full regard to the circumstances in which they occurred, the crimes of violence committed by the applicant can only properly be described as serious and therefore the nature of her crimes must weigh in favour of a decision to refuse her visa.
Risk to the Australian community
A decision-maker should also have regard to the following principle, described in paragraph 11.1.2(1) of Direction 65 as follows:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers 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. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) of Direction 65 further provides:
In addition, decision-makers should have regard to 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.
Additionally, paragraph 11.1.2(3) of Direction 65 states:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct; and
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 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 the intended stay in Australia.
The potential risk of the applicant reoffending has been substantially dealt with in the character test assessment above.
In relation to the risk of harm to the Australian community, the applicant submitted that the risk of harm should be assessed as quite low, citing the absence of any evidence of serious lasting harm to the victims of both the Canadian assault and the spitting and biting offences.
The Tribunal does not accept that the consequences to the victims, if repeated, would be considered to be insignificant to the Australian community. The Tribunal does accept the broader point, that given the very particular circumstances of the applicant’s offending, the likelihood of it ever re-occurring in the community and posing a risk to the general public is low provided the applicant received the appropriate level of mental health treatment and broader support.
The Tribunal considers that both the risk of reoffending and the risk of harm to the Australian community from the applicant being released are low provided the applicant receives the requisite support. However, the risk is not minimal or trivial, and therefore this factor should weigh in favour of a refusal of the applicant’s visa.
During the course of the hearing, there were a number of very generous offers from members of the community to assist the applicant in her transition out of detention, including offers of accommodation and referrals to support agencies. Should the applicant be released into the community, support of this kind would be extremely helpful in minimising the risk of reoffending.
Best interests of minor children in Australia
The applicant has no minor children in Australia. Accordingly, this consideration is given no weight.
Expectations of the Australian community
Paragraph 11.3(1) of Direction 65 provides:
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 visa 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 not be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.
In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36], Deputy President Block explained:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
Furthermore, in Re Do v Minister for Immigration and Border Protection [2016] AATA 390 at [23], Deputy President McCabe stated:
A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment…
Having carefully considered all of the evidence in this matter, the Tribunal is satisfied that fair-minded members of the Australian community apprised of the facts of the applicant’s background would be sympathetic to her circumstances. The Tribunal does not seek to diminish in any way the seriousness of the applicant’s offending. For the reasons set out above there is no question that the applicant’s past offending was serious and would be viewed as such by the Australian community. However, the Tribunal is satisfied that fair‑minded Australians would appreciate the very specific context in which the offending occurred, would acknowledge that the applicant has served her time for past offences and would accept, based on the expert evidence, that her prospect of reoffending is low and the risk of harm she poses to the Australian community is low.

The applicant has had a difficult life. She has suffered traumatic family losses, was betrayed by her former husband and continues to be separated from her only son. She clearly feels not just an intense emotional bond towards her son but also a great deal of shame, regret and guilt as a consequence of the decisions she has made in her life and the impact that has had on him.
Furthermore, as explained below, the Tribunal accepts that the applicant is owed non‑refoulement obligations. In light of this, there is a real prospect that a decision to refuse the applicant’s visa would leave the applicant in detention indefinitely. Given the extraordinary length of time the applicant has been in detention, the significant impact extended detention has had on her mental health, and considering all of the other circumstances of her case, the Tribunal considers that the prospect of indefinite detention is an important additional reason why a fair-minded Australian would support the granting of a visa.
For these reasons, the expectations of the Australian community should weigh very heavily in favour of the applicant and against a decision to refuse the applicant’s visa.
Other considerations
International non-refoulement obligations
Direction 65 relevantly states at paragraph 12.1:
(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 to non-citizens in Australia 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 non‑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 s 501 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 is 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 WR) 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.
As previously noted, the MRD found the applicant was a refugee within the meaning of s 5H(1) of the Act and remitted the matter back to the Minister for reconsideration.
At the hearing the respondent sought to invite the Tribunal to re-open the question of the applicant’s refugee status. However, in its closing submissions the respondent conceded this point stating:
In the light of the applicant’s evidence at hearing, the respondent accepts that the applicant is owed non-refoulement obligations, in line with the MRD’s findings, and accepts that substantial weight should be given to this factor by the Tribunal.
The Tribunal accepts that the applicant is owed non-refoulement obligations. In light of this, were the applicant’s visa to be refused, there is a real prospect that she could face indefinite detention. Against that backdrop, and acknowledging the serious mental health issues the applicant is currently dealing with, this consideration should weigh very heavily in favour of the applicant and against a decision to refuse the applicant’s visa.
Impact on family members
The applicant has no family in Australia. Accordingly, this consideration is given no weight.
Impact on victims
The Tribunal does not have evidence before it regarding the impact the applicant’s release from detention would likely have on the victims of the applicant’s criminal behaviour, or the family members of the victims. Therefore, this consideration should weigh neither for nor against the exercise of the discretion.
Impact on Australian business interests
This decision will have no impact on Australian business interests. Accordingly, this consideration is given no weight.
Additional Considerations
The Tribunal accepts the respondent’s submission that in weighing the relevant factors with a view to reaching a decision on review, consideration should be given to Iran’s refusal to accept the return of citizens of Iran on an involuntary basis who have been seeking asylum overseas. Again, the practical effect of this is that were the applicant’s visa application to be refused, there is a real prospect that she could face indefinite detention.
CONCLUSION
The Tribunal is satisfied that the applicant does not satisfy the character test set out in s 501(6) of the Act and therefore is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 65 – Part B. The Tribunal has carefully assessed each of the considerations of Direction 65 as set out above.
The Tribunal recognises the serious nature of the applicant’s prior offending and the low risk her release could pose to the Australian community. However, it is satisfied that Australia’s international non-refoulement obligations and the expectations of the Australia community weigh heavily in favour of a decision not to refuse the applicant’s visa. The Tribunal is satisfied that the overall balance weighs in favour of the applicant and against a decision to refuse her visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the applicant not be refused a Temporary Protection (Class XD) visa under section 501(1) of the Migration Act 1958.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

.....[sgd]......................................
Associate
Dated: 11 October 2018

Date(s) of hearing: 1-2 October 2018

Date final submissions received: 5 October 2018

Counsel for the Applicant: Mr Nicholas Poynder

Solicitors for the Applicant: Erskine Rodan & Associates
Mr Erskine Rodan

Solicitors for the Respondent:

Australian Government Solicitor
Mr David Brown

[2018] AATA 3784

11 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	1-2 October 2018
Date final submissions received:	5 October 2018
Counsel for the Applicant:	Mr Nicholas Poynder
Solicitors for the Applicant:	Erskine Rodan & Associates Mr Erskine Rodan
Solicitors for the Respondent:	Australian Government Solicitor Mr David Brown