HPZB and Minister for Home Affairs (Migration) - [2019] AATA 439

HPZB and Minister for Home Affairs (Migration) [2019] AATA 439 (13 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7604
Re:HPZB
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date of decision: 13 March 2019
Date of written reasons: 15 March 2019
Place:Melbourne

The Tribunal affirms the decision under review.

............[sgd]..................................................
Senior Member R. Pintos-Lopez
Catchwords
MIGRATION – temporary protection visa refusal – failure to pass the character test – whether discretion to refuse visa should be exercised – protection and expectations of the Australian community – risk of reoffending – international non-refoulement obligations – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Cao and Minister for Home Affairs (Migration), Re [2018] AATA 1261
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Do and Minister for Immigration and Border Protection [2016] AATA 390
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jaffarie v Director General of Security [2014] FCAFC 102
Jopar v R [2013] VSCA 83
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
NRND and Minister for Immigration and Border Protection, Re [2018] AATA 3601
R v Feng Lin [2001] NSWCCA 7
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 79
DFAT Thematic Report, Hazaras in Afghanistan, 18 September 2017
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
15 March 2019

The Applicant seeks review of a decision, dated 17 December 2018, made by a delegate of the Respondent, the Minister for Home Affairs, pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Applicant a Temporary Protection visa (the Visa).
The decision to refuse to grant the Visa was made because a delegate of the Minister:
(a)determined that the Applicant did not pass the character test as defined in s 501(6) of the Act as he has a substantial criminal record (as defined in s 501(7) of the Act); and
(b)exercised the discretion pursuant to s 501(1) of the Act to refuse to grant the Applicant the Visa.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND AND RELEVANT FACTS
The Applicant was born in Afghanistan in 1967. He is a member of the Hazara community, which is a minority ethnic group with distinct features, and is a practising Shi’a Muslim. The Applicant resided with his family in Afghanistan until approximately 1999.
Pakistan
In 1999, the Applicant and his family travelled to Pakistan because of persecution from the Taliban and Daesh, the acronym given to the group also known as the Islamic State of Iraqi and Syria (ISIS), because they were members of the Hazara community. The Applicant stated that the Taliban in Afghanistan had killed his father and burnt his family land.
The Department of Foreign Affairs (DFAT), in a report entitled “DFAT Thematic Report. Hazaras in Afghanistan”, dated 18 September 2017, states:
The Hazaras are one of Afghanistan’s fourteen recognised ethnic groups. Their name is Persian for ‘one thousand’, and relates to a myth that the Hazara descended from 1,000 troops that accompanied Genghis Khan during the Mongol conquest of Eurasia. The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), the more commonly used of Afghanistan’s two official languages. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian.
…
The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for Hazaras nationwide. The worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazaras. Many Hazaras fled Afghanistan during this period to escape Taliban oppression. US-led coalition forces removed the Taliban in late 2001, greatly reducing violence and discrimination against Hazaras.[1]
[1] [2.1], [2.6]-[2.7].
The Applicant travelled to Pakistan with his mother, younger brother, sisters and his wife and three children. The Applicant and his wife had another child in Pakistan. The Applicant resided in Pakistan for almost 12 years.
The Applicant stated that for the first three years while in Pakistan his family had resided as refugees. After that time and up until 2010 they remained in Pakistan illegally.
In 2003, the Applicant was injured during a suicide attack on Friday prayers at a Hazara mosque in Pakistan.
In 2007, Sunni extremists attacked the Applicant’s shop and kidnapped two of his sons. His younger brother was also injured during the attack. The Applicant stated that he paid a ransom for the release of his sons.
Sons presumed lost at sea
In 2009, two of the Applicant’s sons contacted a man who arranged for them to travel to Jakarta and from there to travel by boat to Australia.
The Applicant, in a written statement, states that:
My two eldest sons, … had to leave Pakistan before the rest of our family. They had been kidnapped by Sunni extremists and I was very concerned for their safety if they stayed in Pakistan. They left Pakistan in 2009.
On 1 October 2009 I received a call from my son and he said he was on the boat in Indonesia and it was ready to leave for Australia. I remember this well because it was a Thursday, which is a big night for Shi’a Muslims and I was praying. It was the last time that I spoke with my sons.
I have been searching for my sons for a very long time now. They have been missing since October 2009. [One son] was 17 and [the other] was 15 when they went missing. My family and I do not know where they are or what happened to them.
In 2010, the Applicant’s mother died. At that time, the Applicant and his family decided to leave Pakistan. The Applicant’s wife stated that as a family they had left Pakistan because they had been targeted and persecuted as Shi’a Muslims.
In that same year, the Applicant’s younger brother travelled from Pakistan to Australia. The brother is now a permanent resident in Australia.
Indonesia
In 2010 the Applicant’s remaining family members commenced the journey to Indonesia via Thailand and Malaysia.
The Applicant stated that in Indonesia, he provided for his family with money that he had brought to Indonesia from Pakistan and money provided to him from his brother, as well as money obtained from commissions for the purchase of rugs for others.
The Applicant stated that he had “registered” with the United Nations in Indonesia and was awaiting that “process” which he stated might take the family to another country.
The Applicant stated:
I lost my two sons at that time. So we don’t want to take a risk… we are waiting for the process of the United Nations but when we are looking for the United Nations gone long. So we decided jump, take our life own risks and come here.
Decision to travel to Australia
Accordingly, at some point thereafter, the Applicant and his family determined to leave Indonesia and to travel by boat to Australia.
In Indonesia, the Applicant states that he came into contact with a man called “AB”. The Applicant stated that AB told him that his two missing sons were in Tasmania.
AB assisted the Applicant in what would be three attempts to travel to Australia. The Applicant states that on both unsuccessful attempts, the group that he and his family had been travelling with had been arrested but that they had escaped and travelled back to Jakarta.
In early 2012, the Applicant and his family travelled by boat towards Australia and were taken to Christmas Island. From Christmas Island, the family were taken to an immigration detention centre at Inverbrackie.
Arrest
In June 2012, while in detention, the Applicant was arrested by the Australian Federal Police and charged with people smuggling. The Applicant was taken from detention to the Metropolitan Remand Centre (MRC).
The prosecution alleged that the Applicant had engaged in people smuggling in relation to two different “suspected irregular entry vehicles” (SIEVs) which were intercepted by the Royal Australian Navy. It was alleged that the Applicant had engaged in people smuggling in relation to five people for each of the SIEVs.
In 2014, a jury found the Applicant guilty of one charge of people smuggling in relation to one person.
In June 2014, the sentencing judge sentenced the Applicant to three years imprisonment, to be released after serving two years on a recognisance release order in the sum of $2000 and to be of good behaviour for 12 months. The judge noted that the Applicant’s sentence had been served by way of pre-sentenced detention.
The Applicant was then taken from the MRC to the Maribyrnong Immigration Detention Centre (MIDC).
In 2015, the Applicant was moved from MIDC to the Melbourne Immigration Transit Accommodation (MITA). The Applicant has resided at MITA until the present.
Detention
The Applicant stated that he is well respected in detention and given responsibilities to clean the unit and provide meals to others, which he states are responsibilities only given to detainees who do not break the rules.
The Applicant stated that while in detention, he was permitted to make numerous trips outside of the detention centre including trips to the beach, the zoo, parks and on two occasions he was permitted to attend his family home.
The Applicant was supported by evidence given by a woman who provides assistance to people in detention. She stated that she had known the Applicant for four years. She stated that she was certified to take detainees on excursions and that, in that capacity, she had taken the Applicant to his house and left him unaccompanied there for a number of hours. She stated that the Applicant was highly respected in detention.
The Applicant stated that in addition to his trips outside of immigration detention, that every Friday he attends Shi’a mosques. While attending a mosque, the Applicant states that the immigration officials remain outside the mosque.
During his time in detention, the Applicant has completed various courses including literacy, food safety, and numeracy courses. In addition he has received a certificate of recognition for mentoring peers in education.
Recent procedural history
In March 2015, the Minister refused an application from the Applicant for him to intervene in the Applicant’s case to allow him to reside in the community.
In May 2015, the Applicant and his family applied for protection visas. The Applicant claimed that he and his family had a well-founded fear of persecution if they were returned to Afghanistan, principally because they are Shi’a Muslims from the Hazara community.
In March 2016, the Commonwealth Ombudsman recommended that the Applicant be considered for a bridging visa in order for him to be reunited with his family in the community.
In August 2016, the Minister again refused to intervene.
In March 2017, the Applicant and his family were refused protection visas. The Applicant and his family applied to the Tribunal seeking a review of the refusal decision.
In August 2017, the Tribunal found that the Applicant and his family were owed protection obligations by Australia.
In December 2018, the Minister made a decision to refuse to grant the Visa.
Following the Minister’s decision, the Applicant applied to the Tribunal seeking a review of the decision to refuse the grant of the Visa.
RELEVANT PROVISIONS OF THE ACT
Section 501(1) of the Act provides:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) and (7) of the Act relevantly provide:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more
Section 499 of the Act grants power to the Minister to give directions:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
Ministerial Direction No. 79 made under s 499 of the Act, currently applies to decisions made pursuant to s 501(1) (the Direction).[2] The Direction sets out the objectives of the Act along with general principles and guidance in relation to the manner of exercising the discretion granted under s 501(1) of the Act.
[2] The Direction was made on 20 December 2018 and commenced on 28 February 2019.
The Direction provides at paragraph 6.1(1):
The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Direction then sets out a number of principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out the manner of exercise the discretion:
Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction explains how decision-makers are to take relevant considerations into account:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
As noted in paragraph 8 of the Direction, the differing considerations are set out in the Direction in three parts, which apply to the decision depending on the circumstances. Part B is relevant and applies to visa applicants and provides, at paragraph 11(1), the three primary considerations:
In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Each of these primary considerations are then explained further in Part B.
The Direction sets out, at paragraph 12(1), certain other considerations that must be considered, if and where they apply:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
In relation to the balancing of the various considerations under the Direction, the authorities provide that:
(a)the Tribunal is obliged to consider the Direction and assess the degree of the considerations and, having done so, it must “put its conclusion on the issue on the scales in the manner provided for by the direction”: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 589, per Whitlam and Gyles JJ.
(b)The Tribunal is not bound to accept the version of events put by the Applicant, the decision-maker will give the Applicant’s story such weight as he or she considers appropriate in all the circumstances: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 427, per Davies J.
(c)When applying the discretion, the Tribunal must genuinely weigh factors leading to opposite conclusions and not artificially limit any of the factors: Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567 at [20].
APPLICATION

These reasons proceed, in accordance with s 501(1) of the Act, to consider:
·first, whether the Applicant passes the character test as defined by s 501(6) of the Act and specifically, whether the Applicant fails the character test contained therein because he has a substantial criminal record; and
·second, whether the discretion contained in s 501(1) should be exercised to grant or to refuse to grant the Visa.[3]
[3] This is also expressed in another manner in the Direction as follows: informed by the principles in the Direction, and taking into account the considerations in Part B, whether the Applicant will forfeit the privilege of being granted a visa.
I. WHETHER THE APPLICANT PASSES THE CHARACTER TEST
The Applicant will have a substantial criminal record if, among other things, he has been sentenced to a term of imprisonment of 12 months or more.[4]
[4] Section 501(7)(c) of the Act.
In June 2014, the Applicant was sentenced to three years imprisonment. Accordingly, the Applicant has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more.[5]
[5] For the purposes of making that determination under s 501(7) of the Act, it is the term of imprisonment to which the Applicant was sentenced, not the term actually served, that is relevant: Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409 at 415-18, per Bowen CJ and Deane J.
I am satisfied that the Applicant does not pass the character test as he has a substantial criminal record, as prescribed under s 501(7)(c) of the Act, by virtue of having been sentenced to a term of imprisonment of 12 months or more.
II. EXERCISE OF THE DISCRETION PURSUANT TO S 501(1) OF THE ACT
Part B of the Direction sets out three primary considerations and a number of other considerations, which are relevant to whether the discretion contained in s 501(1) should be exercised to grant or to refuse to grant the Visa.
A. Primary considerations
The Direction contains three primary considerations that must be taken into account being the:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and  
(c)expectations of the Australian community.[6]
[6] Paragraph 11(1).
Protection of the Australian community
The Direction provides that decision-makers 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.[7]
[7] Paragraph 11.1(1).
In relation to this primary consideration, decision-makers should have regard to the:
(a)nature and seriousness of the non-citizen’s conduct to date;[8] and  
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[9]  
[8] Paragraph 11.1.1.
[9] Paragraph 11.1.2.
The first primary consideration, the protection of the Australian community is to be assessed in two parts. Each of these are considered and applied below.
(i) The nature and seriousness of the conduct to date
In relation to the nature and the seriousness of the conduct to date, paragraph 11.1.1(1) of the Direction 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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h) The cumulative effect of repeated offending;
i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial.[10] The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the Applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358.
[10] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 240.
In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, Fisher and Lockhart JJ, at 358, stated:
The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the Applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[11]
(Emphasis added.)
[11] CfMinister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [47] stating his “Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.”
Their Honours stated further at 359-360:
It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the Applicant; but not for the purpose of assessing the propriety of the conviction.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245, the Court stated:
…at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point.
Recently, in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, Bromberg J stated:
Relying on many of the authorities which have been discussed above, including Daniele, Gungor, SRT and Ali, the Court of Appeal of the Supreme Court of Victoria (Beach, McLeish and Niall JJA) in Secretary to the Department of Justice and Regulation v LLF[2018] VSCA 155, expressed the applicable legal principles as follows (at [42]) (citations omitted):
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
…
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
…
The Tribunal was entitled to treat the Applicant’s evidence as false because that evidence was inconsistent with facts that the Tribunal was required to treat as true. That exercise involved no irrationality or illogicality. Contrary to the Applicant’s contention, the Tribunal’s engagement with that evidence for the purpose of demonstrating a lack of contrition or remorse involved no error. Ground 2 must be dismissed.[12]
[12] [76], [78] and [95].
The people smuggling offence
In 2014, the Applicant was convicted in the County Court of Victoria in Melbourne of the offence of facilitation of the entry of a non-citizen into Australia referred to as “people smuggling” and sentenced to 3 years imprisonment to be released after serving two years on entering recognisance self $2000, to be of good behaviour for 12 months and that a period of 722 days was taken into account as pre-sentence detention.
The Applicant was charged in relation to two different SIEVs which were intercepted by the Royal Australian Navy both less than 40 nautical miles north-east of Christmas Island. The two charges were in respect of the two SIEV’s. The jury found the Applicant not guilty on charge two. The jury found the Applicant not guilty of charge one but guilty of an alternative charge of people smuggling simpliciter.
The sentencing judge stated:
the prosecution case in relation to Charge 1, was that you were an organiser who facilitated the entry of people from middle-eastern countries to Australia, through Indonesia,… of at least five people. The prosecution case in relation to those who were passengers on the [SIEV], was that you were known as [AB]. The jury’s verdict reflects that the jury was satisfied beyond reasonable doubt that you organised only one person.
The sentencing judge provided her reasons for sentence and noted that the Applicant pleaded not guilty to an indictment containing two charges of aggravated people smuggling, namely, the facilitation of the bringing or coming to Australia of a group of at least five persons who were non-citizens and who had no lawful right to come to Australia. The maximum penalty is 10 years imprisonment or a fine of a maximum of $110,000 or both.
Her Honour stated that one of the SIEV passengers identified the Applicant in a pre-trial identification procedure as the man he knew as AB, whom he had met in Indonesia and who had facilitated his travel to Australia.
The sentencing judge stated that the Applicant’s role:
…can be described as that of an organiser, which places you above a master of vessel or a crew member in the hierarchy, for sentencing purposes. However I agree… that the jury‘s verdict reflects that your criminality is at the low level for an organiser, as it is limited solely to one person over a limited period.
Further, her Honour stated that:
…in the circumstances of the jury’s verdict, I must sentence you on the basis that your financial gain was modest, as no doubt you had to meet the expenses incurred, including to recompense others who were also involved in assisting you or working with you, costs of accommodation, costs of transporting [person A] by bus to where the boats were, the assistance of Indonesian people, who escorted [person B] to the boats, the use of the small boat to travel to the big boat, and payment of the master of that large boat, who transported him to Australia. Nevertheless, I sentence you on the basis that I infer that the reason you committed this offence was financial gain.
(Emphasis added.)
The sentencing judge stated further:
I accept that you are a man who does not need to resort to committing crimes to support your family, given your intelligence and business acumen.
Her Honour described a number of occasions in which the Applicant had met the witness stating:
you introduced yourself as [AB]. The meeting took place in his apartment and there was discussion about the impending trip. You told him you could assist him leaving Indonesia. [He] said you told him that the ship would travel to international waters, where police would come and save him, take him to a detention centre, where he would have the choice of which country he wanted to go.
The sentencing judge stated:
I sentence you on the basis that you were involved in the organising of the movement of [the witness] from the time he arrived in Indonesia to the [first apartment], to the [second apartment], then by road transport to the jungle, onto a small boat and then on to [SIEV].
The sentencing judge stated further:
The offence of people smuggling is very serious. The maximum penalty indicates this. This offence is difficult to detect, given in particular the vast Australian coastline, where there is barren land and little population. Further, the evidence of [the witness] reflects the steps that were taken to conceal the arrangements that had been made from the local and other authorities. There are very serious risks associated with travelling to Australia in the type of vessel that [the SIEV] was, namely a fishing boat. I take judicial knowledge of the occasions when people who have travelled on those boats illegally, have died on their way to Australia.
(Emphasis added.)
As to his conviction, the Applicant stated that he has never met the man who identified him as AB. In a written statement, the Applicant stated:
I have never been involved in people smuggling and I pleaded not guilty to all of the charges.
When I was convicted, I was very shocked and confused. I had never seen [the witness] in my life and I had never been involved in people smuggling. I had never committed any crimes in my life. I didn’t understand how there had been any evidence to prove that I had committed this offence.
Even though I have never been involved in people smuggling, I accept and respect the verdict of the Court and I respect the criminal justice system in Australia. I accept the decision and I have served my sentence.
The Applicant’s wife stated that in her opinion, the Applicant would never have engaged in people smuggling because of the loss of his two sons at sea.
The Applicant’s wife stated that she had heard the name AB and that he was a people smuggler. She stated that she had never met the person who had organised her trip to Australia.
The Applicant’s youngest son stated that he had seen information regarding his father’s conviction for people smuggling online. He stated that his father had been wrongly convicted. The Applicant’s older son stated similarly that he did not believe that his father was a people smuggler.
As to the Applicant’s remorse the sentencing judge stated that, in the circumstances, “there is no evidence of remorse, nor have you taken responsibility for your crime”.
Authorities regarding people smuggling
The Respondent referred to a number of authorities which consider the nature of people smuggling and its costs and consequences.
In R v Feng Lin [2001] NSWCCA 7, Mason P stated:
The objective seriousness of the offence is evident from its nature and the reasons underlying the 1999 amendments which increased the maximum penalty to ten years imprisonment or 1000 penalty units or both. Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline. The extent of the problem has increased markedly in recent years, according to the Minister’s second reading speech set out in the judgment of Carruthers AJ.[13]
(Emphasis added.)
[13] [3].
His Honour Carruthers AJ (Hidden J agreeing) set out parliamentary debate in relation to people smuggling, including a statement from the Shadow Minister for immigration who stated:
The amendments put forward today reflect the seriousness of these crimes and their cost to the government and to the Australian community.
Sentencing judges must necessarily be sensitive to the concern expressed by the Federal government at the increasing prevalence of people-smuggling into this country with its consequence of possible health problems, the cost of detection, law enforcement, detention, and the many other social problems associated with this illegal conduct. Of course, unhappily this is not a problem which is confined to Australia, although it must be acknowledged that Australia is particularly vulnerable to people-smuggling by reason of its extensive coastline.[14]
(Emphasis added.)
[14] [50]-[51].
In Jopar v R [2013] VSCA 83, Weinberg J stated:
The offence of ‘people smuggling’ under s 233A(1) of the Migration Act 1958 (Cth) carries a maximum penalty of ten years’ imprisonment. That is a substantial term, and represents a ‘yardstick’ by which the gravity of the offence may be measured. Moreover the authorities make clear that the offence must be viewed seriously. Plainly, general deterrence is an important factor in sentencing those found to have engaged in people smuggling.
…
Similar comments had earlier been made by McKechnie J in the Supreme Court of Western Australia in Ilam v Dando, when, having allowed various appeals against sentence, his Honour resentenced the appellants for people smuggling offences which had previously been dealt with by a magistrate. His Honour said:
The introduction of illegal immigrants into Australia threatens this country’s national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself. It is the nature of this nefarious trade in human cargo that persons such as the appellants will often be recruited from among the poorer peoples of the region to supply the necessary transport and to take all the risks.
Notwithstanding their comparatively low level in the criminal hierarchy, nevertheless the appellants performed a pivotal role in the scheme and were vital to its success. It is necessary for courts to deal strongly with the appellants and those like them for the purpose of deterrence to others.[15]
(Emphasis added.)
[15] [2]-[5].

His Honour Harper JA stated:
Much has been said and written, in both the political and the judicial spheres, about the vexed problem of people smuggling. It is an offence with many victims. First among these are the men, women and children who have been exploited by the smugglers, often having earlier been victims of inhumane treatment well before boarding the vessels which they hope will bring them alive to Australia. In another category, a category the interests of which every Australian government is bound to uphold, is the Australian public. Allsop P referred to both categories in his judgment in Karim v The Queen:
In light of some of the later discussion in these reasons …, it is appropriate to say that the smuggling of people illicitly into Australia (whatever may well be the justness of claims of such people for protection by Australia) is potentially productive of great suffering. The people smuggled are at risk of great danger on both land and sea journeys; they, by necessity, associate with organised criminal gangs, sometimes at great financial cost, which, it might be thought, can only often be afforded by many people by ancillary participation in darker forms of human trafficking. The deterrence of the illicit trade in smuggling people can be seen as both a legitimate and important public policy of the Australian Parliament.
…
The degree of criminality of some who are guilty of an offence against s 233A of the Migration Act may be small. Desperately poor citizens of developing countries, with little or no knowledge of the true purpose of a voyage which they agree to join as crew, and with little or no ability to extract themselves when fully informed of that purpose, will not necessarily be appropriate instruments for a demonstration of the importance of general deterrence in combating the evils of the people smuggling trade.[16]
[16] [43]-[45].
In Jaffarie v Director General of Security [2014] FCAFC 102, Flick and Perram JJ stated:
People smuggling poses a serious threat to Australia’s territorial and border integrity by providing an avenue for a large number of undocumented individuals to gain entry to Australia, potentially including individuals of security concern.[17]
[17] [36].
The Tribunal may not challenge the fact of a conviction or sentence or the essential facts on which it was based where a previous conviction is the foundation for the exercise of power by the decision-maker. However, the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself. I find that the Applicant was untruthful when he gave evidence that he was not the man referred to as AB and that he was innocent of the offence of people smuggling.
I have considered the evidence before the Tribunal in relation to the nature and seriousness of the offence and the submissions made by the parties. I find that the Applicant’s offence of people smuggling is very serious for reasons that include:
(a)The length of the sentence imposed supports a finding that the offence is serious.
(b)The maximum penalty indicates that the offence is very serious, which was a matter specifically raised by the sentencing judge. Similarly, in Jopar v R [2013] VSCA 83, Weinberg J stated that the maximum penalty is “a substantial term, and represents a ‘yardstick’ by which the gravity of the offence may be measured. Moreover the authorities make clear that the offence must be viewed seriously.”
(c)Other judges considering the offence of people smuggling have made similar remarks regarding the seriousness of the offence and its costs to Australia including that:[18]
(i)“Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public”: R v Feng Lin [2001] NSWCCA 7, at [3] per Mason P.
(ii)The people smuggling “consequence of possible health problems, the cost of detection, law enforcement, detention, and the many other social problems associated with this illegal conduct.”: R v Feng Lin [2001] NSWCCA 7, at [50] per Carruthers AJ citing Parliamentary debate.
(iii)“The introduction of illegal immigrants into Australia threatens this country’s national security in many ways. It is a growing problem which requires Australia to take the necessary steps to protect itself. It is the nature of this nefarious trade in human cargo that persons such as the appellants will often be recruited from among the poorer peoples of the region to supply the necessary transport and to take all the risks.”: Jopar v R [2013] VSCA 83, at [3] per Weinberg J citing comments made by McKechnie J in Ilam v Dando.
(iv)“It is an offence with many victims. First among these are the men, women and children who have been exploited by the smugglers, often having earlier been victims of inhumane treatment well before boarding the vessels which they hope will bring them alive to Australia. In another category, a category the interests of which every Australian government is bound to uphold, is the Australian public.”: Jopar v R [2013] VSCA 83, at [41] per Harper JA.
(d)The risk that people who travel illegally on boats may die. As noted by the sentencing judge, who took judicial knowledge of the occasions when people who have travelled on boats illegally, have died on their way to Australia. In the circumstances of the Applicant, the loss of his two sons at sea while travelling illegally to Australia on a boat makes it tragically and profoundly clear as a risk to the Applicant.
[18] I take into account the fact that much of the consideration by the Courts in the authorities referred to concern general deterrence, which even if there were no uncertainty regarding its relevance in an application such as this, is not relevant to the circumstances of the Applicant. See NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, at [29] per Allsop CJ and Katzmann J (stating “A Minister may consider that the refusal of a visa to persons who have offended in some fashion may act as a disincentive to others and in this way protect other detainees or the Australian public. That might be a legitimate consideration; but care needs to be taken. There is authority that a deportation order made for the sole or substantial purpose of deterring others would serve (impermissibly) as punishment of the criminal: Re Sergi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 at 231 (per Davies J); Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 at 232 (per Smithers J); and see Djalic at [76] and Tuncok at [42].”).
In making a finding that the Applicant’s offence of people smuggling is very serious, I take into account that:
(a)The sentencing judge stated that the jury’s verdict reflects that the Applicant’s criminality is at the low level for an organiser, and is limited solely to one person over a limited period.
(b)The Applicant has been convicted of only one offence: see paragraph 11.1.1(1)(g) of the Direction.
(c)The Applicant is a refugee who was in Indonesia after fleeing from persecution in Afghanistan and Pakistan. To this extent, I take into account that the Applicant’s circumstances in Indonesia were underpinned by his need to find a safe home for his family.
(d)But also that the reason for the Applicant’s offending was financial gain and that the Applicant is not a person who needed to resort to committing crimes to support his family, given his intelligence and business acumen.
On balance, taking the matters referred to above into account, I find that the nature and seriousness of the offence weighs heavily against the Applicant.
(ii) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In terms of the risk to community, the Direction provides at paragraph 11.1.2(1):
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(1) as a principle provides the basis for a calculus in relation to risk. Relevantly, that tolerance for any risk of future harm diminishes as seriousness of the potential harm increases with the opposite being the case, that is, that tolerance of any risk goes up as the seriousness goes down.
Paragraph 11.1.2(3) of the Direction provides that 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, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to 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.
Nature of the harm should he engage in further criminal activity:
For the reasons stated above, I find that the nature of the harm to individuals, groups or institutions in the Australian community should the Applicant re-offend in relation to the offence of people smuggling is very serious harm.
Likelihood of engaging in further criminal or other serious conduct:
The state of satisfaction that the Tribunal must reach in assessing the likelihood of the non-citizen engaging in further criminal or other serious conduct necessarily entails a prediction of future conduct. The Tribunal is required to reach a present state of satisfaction based upon evidence. It cannot, based upon that evidence, discount the possibility that there is “a” risk of future criminal conduct. The mere possibility that an Applicant may in future engage in criminal conduct ought be excluded from the assessment. Similarly, trivial or immaterial theoretical risks.
During the course of the hearing, I raised the question of whether the Applicant was likely to engage in further people smuggling. I stated that, it seemed to me, that it was highly unlikely that the Applicant would engage in people smuggling given that he was now in Australia and had been imprisoned for people smuggling. In NRND and Minister for Immigration and Border Protection [2018] AATA 3601, Constance DP stated:
The Minister’s Solicitor likened the offence committed by Mr G to that of a people smuggler operating in a neighbouring country to Australia and transporting refugees to a boat to enable them to travel to Australia. While I agree that this scenario bears some similarity it does not reflect the likely circumstances in which Mr G would find himself if he were living in Australia.
In Australia, Mr G will not be living in a community faced with the humanitarian crisis which existed in Serbia and other European countries in 2015. To put himself in the position suggested on behalf of the Minister he would have to travel to a country outside Australia and establish contacts with refugees there. This is highly unlikely.[19]
[19] [48]-[49].
Taking those comments into account, I find that the likelihood of the Applicant engaging in further criminal or other serious conduct is more than a trivial, immaterial or theoretical risk, having regard to:
(a)the evidence regarding the circumstances of the offending;
(b)the absence of any rehabilitation given the Applicant’s denial of the offence (and taking into account the absence of time spent by the Applicant the community);
(c)the Applicant’s lack of regard for authority which is evident in his persistent denial of the offence, the Applicant’s illegal entry into Australia, and the evidence given by the Applicant in relation to the lengthy period that he and his family resided in Pakistan illegally; and
(d)the duration of the intended stay.
In terms of the risk of the Australian community should the Applicant commit further offences or engage in other serious conduct, taking into account the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some harm if the conduct were to be repeated is so serious that any likelihood that it may be repeated may be unacceptable, I find that the Applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community.
I find that this primary consideration of the protection of the Australian community from criminal or other serious conduct, taking into account and weighing all of the matters referred to above, weighs heavily against the Applicant.
The best interests of minor children
As there are no relevant minor children in Australia, the primary consideration in relation to the best interests of minor children does not arise to be considered in the Applicant’s case.
Expectations of the Australian community
In relation to the primary consideration regarding the expectations of the Australian community, paragraph 11.3(1) of the Direction provides that:
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.
(Emphasis added.)
Paragraph 6.3 of the Direction, which sets out the principles that inform the decision, by application of paragraph 7, to refuse to grant a visa or not contains, at paragraph 6.3(2), a principle directed to the expectations of the Australian community:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
Paragraph 6.3(6) of the Direction provides:
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.
In an earlier decision, Re Cao and Minister for Home Affairs (Migration) [2018] AATA 1261, I considered various authorities in relation to how the Tribunal must go about assessing the expectations of the Australian community.[20] I consider that the views of the Australian community that I must take into account are those of members of the community who are informed, reasonable, fair-minded and mature. I am of the view that those members, to the extent that they are informed, have knowledge of all of an Applicant’s relevant circumstances.[21]
[20] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at 309; Re Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23] and Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36]. See also discussion of the character of the community expectations in Direction No. 65: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [31] and [76], per Mortimer J; and Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [65]-[66], per Forgie DP.
[21] The fact that the Australian community referred to is expected to have specific knowledge of an Applicant is a natural consequence of the words in paragraph 11.3(1) of the Direction, among other things, that 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.”
In this application, the consideration regarding the expectations of the Australian community requires an assessment of the matters that weigh in favour and those that weigh against the Applicant in that consideration.
(a)Factors that weigh in favour of the Applicant:
(i)The Applicant has only committed one offence supporting the common proposition that the Applicant, having transgressed once, ought be given a second chance.
(ii)The time spent by the Applicant in prison and detention.
(iii)The Applicant and his family have fled from persecution in Afghanistan and Pakistan.
(iv)The community sympathy and concern for the Applicant and his family for the loss of his two sons at sea.
(b)Factors that weigh against the Applicant:
(i)The serious nature of people smuggling and the circumstances of the Applicant’s offending.
(ii)The serious character concerns that the community would have in relation to the Applicant because of his continued denial of his offending and the Applicant’s lack of regard for authority, which is considered above.
(iii)The loss of the Applicant’s two sons, which arises as a matter that weighs against the Applicant; being the serious character concerns that the Australian community would have for a man who puts another person at risk of loss of life, for money, in circumstances where he knows and has been traumatised by the loss of his two sons in similar circumstances.
In relation to the loss of his two sons, the Applicant stated: “I lost my two oldest sons because of this business of people smuggling. If you had lost your two sons in this way, you understand how this business works and you would never want to play with other peoples [sp.] lives, to put their lives in danger. It is very hard for me to come to terms with this.” The evidence is, however, contrary to the Applicant.
The putting at risk of the life of another man, although some may say that it could potentially assist a refugee escaping from persecution, which matter ought be discounted because of the financial motive of the Applicant, shows a total disregard for the family, including pertinently for present circumstances the father of that other man. In those circumstances, the Australian community would regard the Applicant’s behaviour as callous and would otherwise be contemptuous of the Applicant’s conduct.
The Applicant’s conduct, taken together in all of the circumstances, in committing a serious offence of people smuggling forms the basis of the expectation that the Applicant not be granted the Visa. The Direction provides that the Australian community has a low tolerance for criminal or other serious conduct by visa Applicants. As provided in the Direction, I consider that in the circumstances of the Applicant, that the Australian community would also have particular character concerns such that it would expect him not to be granted a visa.
On the basis of all of the evidence, I find that the Australian community, composed of community members with knowledge of all of the Applicant’s relevant circumstances, and who are reasonable, fair-minded and mature would expect that the Applicant should not be granted the Visa. The consideration regarding the expectations of the Australian community weighs against the Applicant.
B. Other considerations

Direction No. 79 provides for other considerations in addition to the primary considerations. The Direction states:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.[22]
[22] Paragraph 12(1).
I do not consider the impact on victims and the impact on Australian business interests as there is no evidence before the Tribunal in relation to these considerations.
International non-refoulement obligations
The Direction provides that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at a risk of a specific type of harm.[23]
[23] Paragraph 12.1(1). See Minister for Immigration and Citizenship v Anochie [2012] FCA 1440.
Paragraph 12.1(6) of the Direction provides in part:
…Any non-refoulment 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.
In a written statement, the Applicant states:
There is no place anywhere in Afghanistan that my family and I can live without harm because the Taliban and Daesh are active in all areas of the country.
Kabul is exceptionally dangerous for Hazara Shias. Daesh and the Taliban target and kill Hazara Shias living in Kabul.
My family and I cannot go back to Jaghori because my family and I will be killed by Taliban or Daesh on the roads from Kabul. We would not be safe travelling anywhere in Afghanistan from Kabul because we will be killed. On the highways when you leave Kabul, there are signs that say Hazaras are not safe on any roads coming to or leaving Kabul. Many of my family members have been killed by the Taliban travelling on roads to and from Kabul.
My brother was killed on the road between Kandahar and Kabul by the Taliban in 2009. My cousin was killed on the road between Jaghori and Kabul by the Taliban. I am not sure when this happened. I have heard stories of many other Hazaras who have been killed on the roads. A Hazara man, … was killed by the Taliban on his way from Kabul to Jaghori in 2014.
In 2016 a group of Hazaras were beheaded on the roads near Jaghori.
The DFAT report referred to above states:
Hazaras have made significant social, political and economic gains in Afghanistan since 2001, albeit from a low base. However, the continuing armed insurgency conducted by the Taliban and other groups, including in recent months a local affiliate of the Islamic State terrorist organisation, has raised questions over the sustainability of Afghanistan’s progress. While Afghans of all ethnicities feel uncertain about Afghanistan’s future, DFAT assesses that the Hazaras’ previous experience of life under the Taliban and earlier episodes of discrimination have caused many to feel particular concern about the long-term prospects for their community. This concern is an important factor contributing to the decision of many Hazaras to leave Afghanistan.
In August 2017, the Tribunal, following a separate hearing, determined that the Applicant, his wife and two sons are owed protection by Australia.
The Respondent accepts that the Applicant is a person in respect of whom Australia has been found to owe protection obligations, meaning that to remove him to his country of nationality would be in breach of Australia’s international non-refoulement obligations.
The effect of a refusal to grant the Applicant the Visa is that he will remain an unlawful non-citizen who must be detained under s 189 of the Act and kept in immigration detention until he is removed from Australia under s 198 or is granted a visa. The Respondent submitted that there is presently no known prospect of removal of the Applicant to another country other than his country of origin.
The legal consequence of an Applicant seeking a protection visa whose application is refused in circumstances where there is no material before the Minister to suggest that there is another country willing to take the Applicant; or a country which the Applicant has a right to enter and in which to reside, has been considered by a number of authorities.
In DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, North ACJ
The argument for the Minister only needs to be stated to expose its weakness. The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister’s reasons disclose that he understood that if the protection visa application was refused, the Applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the Applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the Applicant would be removed to Syria.[24]
[24] [26].
In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 (NBMZ), Allsop CJ and Katzmann J stated:
This Court is bound by the reasoning of the majority in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. The power of executive detention is, of course, limited by the scope and purpose of the underlying power – to decide upon immigration status and then, on a given hypothesis, to deport. But the practical realities of individual circumstances mean that some people may face detention for years, with no end in sight. It may be that the harshness of indefinite detention in a particular case is relieved by the making of a “residence determination” under s 197AB of the Migration Act 1958 (Cth) (“the Act”). Such provision might be employed by the Minister to ameliorate what might otherwise be the physical and psychological burdens on a detainee (relevantly hypothesised here as someone recognised by Australia to require protection under the Refugees Convention) faced with indefinite detention. Indeed, after the incident giving rise to the Applicant’s conviction, s 197AB was employed. Nevertheless, the Applicant remains in indefinite detention.
…
Of course, the Applicant’s detention may end by Australia finding a country willing to take him, in circumstances where there is no risk of refoulement. In the present case, however, there was no material before the Minister to suggest that there was such a country; nor was there any suggestion that there was a country which the Applicant had a right to enter and in which to reside for the purposes of s 36(3) of the Act.
The discretion under s 501(1) of the Act is unfettered in its terms, the usual consequence of which can be seen in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505 at [71] and [74]. The Minister is not bound by “Direction No 55 – Visa refusal and cancellation under s 501” issued under s 499(1) of the Act, which his delegates must follow. Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39; and Huynh at [71]. In the case of an Applicant for a protection visa one of those considerations is the statutory (that is, legal) consequences of visa refusal.
The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligation of non-refoulement and the terms of the Act. [25]
(Emphasis added.)
[25] [3], [5]-[6], [10]
In the particulars before the Court, their Honours stated:
What was entirely absent from the briefing note, however, and also from the Minister’s reasons was any attempt to confront the binary relational legal consequence of Australia’s obligation under Art 33 and Australia’s policy of mandatory detention: indefinite detention. It may be accepted, at one level of abstraction, that the Minister was aware of ss 189, 196 and 198 of the Act and of the High Court’s decision in Al-Kateb. That, however, is not the point. A material omission from a briefing paper may affect the decision-making process based on it: Peko-Wallsend Ltd at 30–31, 45 and 65–66. Also, the written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [37], [69], [89] and [133].
Here, it is to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the visa were refused, the Applicant would face the prospect of indefinite detention. This was the effect of Australia’s obligation of non-refoulement and ss 189, 196 and 198 of the Act. For the reasons given above and for the reasons given by Buchanan J this matter could not lawfully be overlooked. [26]
[26] [16]-[17].
In Jaffarie v Director General of Security [2014] FCAFC 102, White J usefully summarises the decision in NBMZ:
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; 307 ALR 49; 138 ALD 495; [2014] FCAFC 38 (NBMZ), on which the Applicant relies for the submission, concerned a decision of the Minister for Immigration and Citizenship not to grant an Applicant a protection visa, even though he had been assessed independently as a refugee. The Minister had held that the Applicant failed the character test by reason of his conviction for an offence of damaging Commonwealth property at a detention centre. The Full Court held that the Minister’s decision was affected by a jurisdictional error as he had not taken into account the legal consequences of a refusal of a protection visa. Having regard to Australia’s non-refoulement obligation and to the provisions of the Migration Act, those consequences involved the indefinite detention of the Applicant: NBMZ at [9]–[10] and [17]–[18] per Allsop CJ and Katzmann J, at [164]–[178] per Buchanan J.[27]
[27] [127].
The circumstances of Australia’s non-refoulement obligation owed to the Applicant are considered in detail in the Tribunal’s earlier decision referred to above. I have taken those circumstances into account including all of the evidence and submissions from the parties. I find that Australia’s non-refoulement obligation weighs heavily in favour of granting the Visa.
Similarly, I find that that prospect of indefinite detention weighs heavily in favour of granting the Visa having regard to the legal consequences flowing from Australia’s obligation of non-refoulement and the terms of the Act, being that if the Visa were refused the Applicant would face the prospect of indefinite detention.
Impact on family members
The Direction provides, at paragraph 12.2(1), in relation to the impact on family members:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
The Applicant gave evidence in relation to the impact of his detention upon his family. He stated that he has been married for around 30 to 31 years and that his time in prison and in detention is the longest time that he has been separated from his wife.
The Applicant stated that if he were released that he would take care of his wife and most likely open a coffee shop which would have his son as supervisor.
The Applicant’s wife stated that her health was currently good and that she was taking medications. She stated that she was able to be properly treated in Australia. The Applicant’s wife stated that she had suffered a stroke and that after her stroke, her life was difficult. In addition, she stated that she had diabetes. She stated that although she could walk to her local shops that it was necessary for her to stop on occasions. She stated that she suffered from back pain.
The Applicant provided a statement from a medical practitioner in relation to his wife, which noted that she had a suspected stroke in 2007 in Pakistan and a second stroke in Melbourne in June 2016. It also raised a number of medical issues the Applicant’s wife suffers such as diabetes, elevated cholesterol levels, back pain and anxiety and stress.
The Applicant’s wife stated that her two sons lived with her. She stated that her sons provided her with financial support and that on occasion they did cleaning. The Applicant’s wife stated that because the Applicant was in detention that her children did not have a father and that life was difficult.
The Applicant’s two sons gave evidence. The Applicant’s youngest son stated that after arriving in Australia he attended language school for three months and then entered into high school at the year eight level. He stated that after he graduated from high school he had commenced studies at a university for a bachelor of business and human relations. He stated that he received a scholarship for asylum seekers who are unable to pay school fees.
The Applicant’s youngest son stated that he worked part-time at a coffee shop. He stated that he assisted his mother financially by providing her with any money left over after his spending. In a written statement, the Applicant’s youngest son stated:
My father is very special to me and I have been separated from him for a long time now. I was 11 years old when my father was taken away from me. I did not understand what had happened and it was all a shock for me at the time. It’s been almost 6 years since I have been away from him and it feels like it has been longer than that.
When I was first released from the detention centre back in late 2012, everything was new to me.
A new beautiful country with beautiful people, but yet I was not still happy. I have always needed my father alongside me in every step. I did not receive the love from the father as he was away from us. As I grew up, I started to understand more and the fact that my father was away from me, it affected me more. It affected me in my studies, the emotional side of me and the fact that my mother was alone all this time.
I am very worried about my mother as she is very sick and all alone most of the time. My brother has to support the family so he is always working and I have been studying. Only if was father was allowed with us so she would be with my mother while me and my brother aren’t with her when she is alone.
The Applicant’s youngest son stated that, in terms of the impact upon him and his older brother, that he had not had a father for his teenage years and their father’s absence had meant that his older brother had to work rather than study.
In December 2017, the secondary college attended by the Applicant’s youngest son provided a letter stating, among other things, that at various times while he was at school that he felt stressed and overwhelmed which was attributed to the uncertainty of his family status in Australia. The younger son reported experiencing low moods, high stress levels and sleep disturbances.
The Applicant’s older son gave evidence stating that he currently works as a forklift driver. He stated that he was 16 when he left detention at which time he attended language school. He stated that once he turned 18 that he was told that he would have to pay school fees. The Applicant’s older son stated that he had received a scholarship in order to study a security course. He stated that in the past he worked at a meat factory for three years but that he had suffered an injury to his back and could not continue.
The Applicant’s older son stated that because of his father’s detention, that he was required to take family burden on his shoulders. He stated that he provided financial support to his mother.
Insofar as the impact on the Applicant’s family of the prospect of the Applicant being granted the Visa, the Applicant states in a written statement:
I want to be able to guide my [eldest] son and help him to start a family business, like opening a grocery shop or a restaurant even though my health is not great and I am older, my mind is still very good. I have been a business man all of my life and I want to support him to set up a business and build a better life for himself.
…
I want to support [my youngest son] in his life and in his future. He was so small when he came here and when I am looking at him and talking to him he is totally Aussie. I am proud of him and I want my sons to accept the culture and way of life here because Australia has offered him a good life.
…
For 6 years of my life, I have never seen how they have grown up, how they are living in the home, how they are eating, speaking to other people, I have never seen them do this. I want to be part of their lives.
I want to offer love and support to my wife who is very sick. Every time I speak to my wife she tells me that I am sitting on this sofa from day to night and it is pressed with her form. Her two sons are always very busy and she is often on her own with nobody to talk to. She lost her two sons, she is very sick and I want to take care of her, I love her very much.
The Applicant’s family members may not necessarily be regarded as provided for in the Direction, as persons who are “Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”, however I take into account the impact of the refusal of the Visa on the Applicant’s immediate family members in Australia.
I find that the impact of the refusal of the Visa on the Applicant’s immediate family would be harmful. The Applicant’s family were clear and credible when giving evidence of the deep care that they have for him and the family unit. I find that the impact of the refusal of the Visa on the family is a consideration that weighs in favour of granting the Visa.
Other considerations: the Applicant’s conduct in detention
The Respondent provided documents concerning incidents while the Applicant has been in detention only days before the hearing and after the Applicant had filed its reply to the Respondent’s submissions.
At the commencement of the hearing, the Applicant objected to the documents being provided to the Tribunal or being relied upon on the basis that there was prejudice to the Applicant primarily on the basis that he had no opportunity to address the incidents in writing and no capacity, whether by calling his own witnesses, to contextualise the incidents. The Applicant also objected to the circumstance which prevented the Applicant from providing any further documents due to the two day rule, but that did not apply to the Respondent.
I agreed to receive the incident documents on the basis that the Respondent would indicate to the Applicant, outside of the hearing, the incidents and documents that the Respondent would refer to and rely upon.
The Applicant was taken during cross-examination to a number of detention centre incident reports.
I find that the Applicant’s conduct in detention, taking into account all of the evidence including the incident reports, does not weigh against the Applicant.
The Applicant’s submission concerning the impact upon the Applicant’s family’s visas

During the Applicant’s oral closing, the Applicant submitted that if the Applicant’s visa was rejected, then the visas of his wife and children would also be cancelled.
The Respondent submitted that cancellation of the Applicant’s visa would not have the effect proposed by the Applicant.
The parties were not in a position to make submissions and accordingly I requested them to provide me with written submissions within three days. I requested that if the parties agreed on a position that they provide a joint statement and if they did not that I would be assisted by written submissions setting out the areas in which the parties disagreed.
The parties provided written submissions following my request at the hearing. The Respondent set out the relevant question: “in the event that the Tribunal affirms the decision of the delegate to refuse the Applicant’s application for a Temporary Protection Visa, would this have an effect on current visa applications by the Applicant’s wife and two sons, or visas that they currently hold?” The Respondent submitted that the answer to this question is no.
The Applicant provided submissions in response stating that the effect on the Applicant’s wife and two sons, following the Minister’s submissions, was to the effect that they would remain in “an indefinite state of uncertainty.” The Applicant, however, did not directly address the submission at the hearing, in effect “if one fails all fail”, and, accordingly, I reject the Applicant’s submission to that effect.
CONCLUSION
In summary, for the reasons set out above, I find that:
(a)The applicant does not pass the character test as he has a substantial criminal record.
(b)On the basis of a balancing of the considerations set out above and all of the evidence, I find that:
(iv)the protection of the Australian community and the expectations of the Australian community weigh heavily against the granting of the Visa;
(v)the impact on the Applicant’s family members and the non-refoulement obligation owed by Australia to the Applicant favours the granting of the Visa;
(vi)on balance, the considerations regarding the protection of the Australian community and the expectations of the Australian community outweigh those considerations that favour the granting of the Visa.
The Tribunal affirms the decision under review.

I certify that the preceding 154 (one hundred and fifty four) paragraphs are a true copy of the written reasons for the decision herein of Senior Member R. Pintos-Lopez

....[sgd]..............................................
Associate
Dated: 15 March 2019

Date of hearing:

28 February – 1 March 2019

Counsel for the Applicant: Mr Christopher Wareham

Solicitors for the Applicant:
Asylum Seeker Resource Centre

Solicitors for the Respondent: Clayton Utz
Mr Neil Cuthbert

Date of hearing:	28 February – 1 March 2019
Counsel for the Applicant:	Mr Christopher Wareham
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Solicitors for the Respondent:	Clayton Utz Mr Neil Cuthbert