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

[2019] AATA 5402

HPZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5402 (13 December 2019)

Division:GENERAL DIVISION

File Number:          2018/7604

Re:HPZB

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:13 December 2019

Place:Melbourne

The Tribunal decides to: 

(1)set aside the decision of the delegate dated 17 December 2018; and

(2)remit the matter to the Respondent with a direction that the Applicant’s application for a Temporary Protection (Class XD) visa not be refused under section 501 of the Migration Act 1958, in accordance with this decision.

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

Senior Member D. J. Morris

Catchwords

MIGRATION – refusal of Temporary Protection (Class XD) visa – failure to pass character test – whether there is another reason to grant visa – single offence – nature of offence – offence is serious – Ministerial Direction No. 79 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – other considerations – non-refoulement obligations – impact on family members – Direction requirement for decision-maker to look at special circumstances of the case – reviewable decision set aside

PRACTICE AND PROCEDURE – power to summon person to give evidence or produce document – respondent summoned - summons subsequently withdrawn by Tribunal – party requests further summons of same person – refusal to summon person – principle that summons are not issued inter partes – request for written reasons for refusal to issue summons – whether Tribunal has obligation to provide written reason for interlocutory decision – no such obligation – written reasons provided with substantive decision

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 38AA, 40A, 43
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13

Migration Act 1958 (Cth), ss 5AA, 233A, 233C, 499, 501CA, 501G, 501K, 503A

Cases

Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432
Du Pont and Minister for Immigration and Ethnic Affairs, Re: [1983] AATA 180
FBYR v Minister for Home Affairs [2019] FCAFC 185
HZCP and Minister for Immigration and Border Protection, Re: [2017] AATA 775
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jaffarie v Director-General of Security [2014] FCAFC 102; (2014) 226 FCR 505
Lam and Minister for Immigration and Multicultural Affairs, Re: [1999] AATA 56
MDBR v Minister for Home Affairs [2019] FCA 1631
Radge and Commissioner of Taxation, Re: [2007] AATA 1317; (2007) 96 ALD 711
R v Karabi [2012] QCA 47
Senior v Holdsworth, Ex Parte Independent Television News Ltd [1976] 1 QB 23
Sesalim and Secretary, Department of Social Services, Re: [2018] AATA 384
Tuimaseve and Minister for Immigration and Border Protection, Re: [2017] AATA 413
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396

Other materials
Migration Act 1958 – Direction. No. 65 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 22 December 2014/commenced 23 December 2014)

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 20 December 2018/ commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

13 December 2019

1. As these reasons relate to a decision relating to a person who applied for a protection visa, under section 501K(1) and (2) of the Migration Act 1958 (Cth)(the Act), the Applicant will be known by the anonym HPZB and the names of his relatives will be anonymised.

2. The Applicant is a citizen of Afghanistan.  He was born at the end of 1967.  He first entered Australia as an unauthorised maritime arrival, within the definition of that term under section 5AA of the Act, in January 2012.  He was accompanied by his wife and two sons.  Initially the four were detained at Christmas Island.  On 14 August 2012 HPZB’s wife and two sons were released into community detention, and on 12 March 2019 they were granted protection visas.

3. The Applicant applied for a Temporary Protection (Class XD) visa.  On 17 December 2018 a delegate of the Respondent decided to refuse to grant him the visa. 

4. Before the Tribunal were the sentencing remarks of a Judge in the County Court of Victoria relating to HPZB which records that in 2014 he was convicted of a Commonwealth offence and sentenced to three years’ imprisonment.

5. This hearing is taking place because of an order by Justice O’Bryan in the Federal Court of Australia on 5 July 2019 remitting the matter for fresh determination by the Tribunal.

6. The hearing was held on 4 December 2019.  Mr Angel Aleksov and Ms Veronika Drago, of counsel, appeared for HPZB, instructed by the Asylum Seeker Resource Centre.  Mr Neil Cuthbert of Clayton Utz appeared on behalf of the Respondent.  HPZB gave evidence and was cross-examined.  The Applicant’s wife, Mrs A, and Ms Carla Lechner, clinical and forensic psychologist, also gave evidence.  The Tribunal appreciates the assistance provided by an interpreter in the Hazaragi language. 

   PROCEDURAL MATTER – Refusal to summon person

7. On 4 September 2019, at the request of the legal representatives of the Applicant, an authorised officer of the Tribunal issued a summons to the proper officer of the Department of Home Affairs, the Department administered by the Respondent, seeking a range of documents.  The return of the summons was 25 September 2019.  On 24 September 2019 the Respondent wrote to the Tribunal and submitted that it was inappropriate for the summons power to be used inter partes, citing the decision of Deputy President Forgie in Re: Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711. However, the Respondent also advised the Tribunal and the Applicant that the Department had conducted reasonable searches for documents responding to the request for additional information within the scope of the summons, and advised that it would provide the documents as supplementary documents.

8. On 27 September 2019 the Respondent wrote to the Tribunal and stated that some of the material sought in the summons contained protected information which must not be produced to a court or tribunal by operation of section 503A of the Act.  Mr Cuthbert advised that he had communicated this advice to the Applicant, who pressed the request. The Respondent further submitted that the material was not relevant to the matter before the Tribunal.  The Respondent sought a telephone directions hearing.

9. The Applicant responded by submitting that the Respondent’s lodgement of documents is governed by sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and if lodged under those sections, the premise for their lodgement is relevance to the review of the decision before the Tribunal.

10. On 9 October 2019 a telephone directions hearing was held. The Tribunal considered submissions from parties and ordered that the summons to the Respondent dated 4 September 2019 be withdrawn. The Tribunal pointed out that sections 37 and 38AA of the AAT Act specifically do not apply to the matter before the Tribunal, the refusal of HPZB’s visa, because of section 500(6D)(b) of the Act.

11. There were further exchanges between the parties about documents sought by the Applicant, some of which the Respondent indicated were being collated for lodgement in relation to the hearing.

12. A further telephone directions hearing was held, this time at the request of the Applicant. At the hearing, the Applicant submitted that section 37 of the AAT Act did apply in HPZB’s application and cited Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396 in support of that view. The Tribunal indicated its view that this was not the case and subsequently explained to parties in writing that the decision in Tuimaseve was not on point because that matter related to a decision to refuse to revoke the mandatory cancellation of a visa under section 501CA before 23 February 2017. Section 500(6D) specifically dis-applied section 37 of the AAT Act to visa decisions under section 501CA of the Act made after 23 February 2017.

13. The Tribunal referred parties to the decision of Deputy President Forgie, Senior Member Nikolic and Member Burke in Re: Tuimaseve and Minister for Immigration and BorderProtection [2017] AATA 413 where, at [30] it was explained that section 37 did apply in Mr Tuimaseve’s matter for that temporal reason. However, HPZB’s matter relates to the refusal of a visa under section 501, not a refusal to revoke the mandatory cancellation of a visa under section 501CA, and in this regard section 500(6D) previously applied to such refusals before and after the February 2017 changes relating to section 501CA decisions, so the submission by HPZB’s legal representatives on this point was doubly in error. The Tribunal notes that section 500(6D) of the Act was enacted to take effect in relation to section 501 decisions made from 22 July 1999.

14. The Applicant made a further request for a summons to be issued to the Respondent on 21 November 2019. On 23 November 2019 the Tribunal, pursuant to section 40A(2) of the AAT Act, refused the request to summon the Respondent, noting that the refusal was on the same basis as explained to parties at the directions hearing on 9 October 2019 and stating the general principle that a party before a proceeding in the Tribunal is not summoned in that proceeding. The Tribunal further noted that the material requested is outside the scope of the matter before the Tribunal, which is the refusal on 17 December 2018 to grant HPZB a Temporary Protection (Class XD) visa.

15. In the light of this, and given that the Applicant’s representatives knew that the Tribunal had withdrawn the summons following the telephone directions hearings, and the reasons the summons was withdrawn, for the representatives of the Applicant to again press for some of the same documents by requesting, again, to summon the Respondent, was bordering on vexatious conduct. That is why the Tribunal refused the request under section 40A(2) of the AAT Act.

16. Part IV, Division 5 of the AAT Act sets out the procedural powers of the Tribunal. Section 40A of the AAT Act provides:

    Power to summon person to give evidence or produce documents

    (1)For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:

    (a)  appear before the Tribunal to give evidence;

    (b)  produce any document or other thing specified in the summons.

    (2)The President or an authorised member may refuse a request to summon a person.

    …

17. The Respondent submitted that the Tribunal should have regard to the view espoused by DP Forgie in Radge.  She said, at [78]:

    78. Finally, I would observe that, generally, I do not consider it appropriate to use the Tribunals’ power to summons documents to obtain documents from the parties themselves. It is a power that should generally be reserved to obtain documents from third parties. The documents will then be available to both parties as well as to the Tribunal. In the case of the decision-maker, relevant documents will generally be produced under s 37 of the AAT Act. If they are not or if it later appears that there are other documents that may be relevant to the review, the Tribunal has power to order their production under s 37(2). That section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents, and so is a more extensive power than that available to the Tribunal under the summons power. In the case of a party who is not the decision-maker, there should also be a reluctance to issue a summons. The directions power is sufficient to require production of relevant documents by the parties.

18. Although the general principles in Radge relate to the obligation of the Respondent under section 37 of the AAT Act, the last two sentences in this extract are relevant to HPZB’s matter.

19. Parliament has established a particular legislative scheme for the refusal, cancellation or refusal to revoke the mandatory cancellation of a non-citizen’s visa on character grounds. The main architecture of that scheme is to be found in sections 500 and 501G of the Act. As mentioned above, section 37 (and therefore section 38AA) of the AAT Act is explicitly dis-applied in these reviews by force of section 500(6D).

20. Section 501G, after setting out obligations on the Minister to provide a notice to the non-citizen who is the subject of the decision and information on how a person can lodge an application for review with the Tribunal, relevantly states:

    (2)If the decision referred to in subsection (1):

    (a)was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and

    (b)is reviewable by the Administrative Appeals Tribunal; and

    (c)relates to a person in the migration zone;

    the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

    (d)is in the delegate’s possession or under the delegate’s control; and

    (e)was relevant to the making of the decision; and

    (f)does not disclose non-disclosable information.

    (Emphasis added.)

21. These obligations broadly reflect the provisions in section 37(1) of the AAT Act with the significant difference being that an Applicant must, under section 500(6C), provide a copy of the documents referred to in section 501G(2) to the Tribunal when the person lodges an application for review. In other words, the obligation to furnish the documents to the Tribunal is transferred in these particular cases from the Respondent to the Applicant, except for a specific obligation placed on the Respondent by section 500(6F) of the Act in a case where there may be non-disclosable information.

22. But what is particularly relevant is that the Respondent must give the person every document relevant to the making of the decision.  In this case, the Tribunal formed the view that much of the additional information being sought by the representatives of HPZB was being sought for a collateral reason, in particular to make a case that the Applicant may be viewed by the Respondent as eligible for a different category of visa.  As the Tribunal made clear in the telephone directions hearing, that is not the question before the Tribunal and the Tribunal would be drawn into error if, in considering HPZB’s application for review, it embarked on an exercise of speculation; the Tribunal is not empowered to make determinations on whether a person may potentially be eligible for some other visa.

23. There is a consistent line of authority that the power of courts (and, where so statutorily empowered, tribunals) to summon persons should not be used as ‘fishing expeditions’.  A leading case is Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23, where Lord Denning MR held:

    …I think that, on due notice being given, the courts have the power to order the ITN to produce and show the untransmitted film when the course of justice so requires – of course, on all their expenses being paid just like conduct money.  But the court should exercise this power only when it is likely that the film will have a direct and important place in the determination of the issues before the court.  The mere assertion that the film may have some bearing will not be enough.  If the judge considers that the request is irrelevant, or fishing or speculative, or oppressive, he should refuse it.

    (Emphasis added.)

24. Spender J referred to Holdsworth favourably in his judgment in Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432.

25. In this matter, there were other avenues for the Applicant to seek information which he considered were relevant to his review through direct request to the Respondent, and the Applicant not only did so, but the Respondent responded.  Of particular relevance, in the Tribunal’s view, were reports on HPZB’s conduct while in immigration detention, and such material that was available was searched out by the Respondent and provided to the Applicant and the Tribunal prior to the hearing.

26. The Applicant also fairly asked that the Tribunal assure itself that there was no non-disclosable information in HPZB’s matter (as encompassed by section 500(6F) of the Act), and the Respondent provided that assurance.

27. The Tribunal makes the final point that there is a general principle that a summons is not issued inter partes precisely because the parties themselves are before the Tribunal and may be questioned directly, and submissions can be made directly by another party, as the Applicant was advised, if it is suggested that information that is relevant to the decision was either being withheld or was otherwise not provided.  Axiomatically, that is not the case with third parties.

28. Section 500(6K) of the Act gives the Tribunal the power to serve on the Minister a notice to provide documents, or a class of documents, if the Tribunal forms the opinion, under section 500(6K)(c) that the documents may be relevant to the decision under review.  The Applicant made no submissions about such a notice and the Tribunal indicated it would be disinclined to issue one where there was evidence that the Respondent was endeavouring to assist the Tribunal by providing documents outside the scope of section 501G of the Act, consistent with its general duty as a model litigant. 

    Provision of written reasons in relation s 40A(2) decision

29. It is relevant to note that this part of these reasons is not provided in conformity with the obligation of the Tribunal under Part IV, Division 6 of the AAT Act, which sets out at section 43(2A) that a party may request the Tribunal to give to that party a statement in writing of the reasons for the Tribunal for its decision. Division 6 is confined to decisions on review, the scope of which are set out in section 43(1) of the Act; that scope does not relate to administrative decisions made in terms of the management of an application for review. In this regard, I respectfully adopt the reasoning of Deputy President Forgie in Re: Sesalim and Secretary, Department of Social Services [2018] AATA 384, at [8].

30. I have read DP Forgie’s discussion in Sesalim in regard to the operation of section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and I think it could be argued by the Applicant that decision to exercise the discretion provided under section 40A(2) of the AAT Act to refuse the request to summon a person may be a ‘decision’ encompassed by the ADJR Act. However, a written request was made by the legal representatives of HPZB prior to the hearing for reasons in writing for my decision, and I indicated they would be incorporated into the reasons for the substantive decision. Accordingly, it is not necessary to consider that question.

    HEARING OF SUBSTANTIVE MATTER

31. The Respondent tendered four volumes of documents: Application Book Volume 1 (Exhibit R1), Application Book Volume 2 (R2); Supplementary Documents (R3); Further Supplementary Documents (R4); Bundle of documents from Serco Group Plc (R5), which were taken into evidence.

32. The Applicant submitted a volume of supporting documents (Exhibit A1); Statement of Evidence of HPZB with annexures (A2); DFAT Country Information Report – Afghanistan – 27 June 2019 (A3); report of Ms Carla Lechner, clinical and forensic psychologist dated 18 November 2019 (A4); testimonial of Ms Pamela Curr, OAM, dated 29 November 2019 (A5), all of which were taken into evidence.

1. Both parties submitted Statements of Facts, Issues and Contentions, and the Applicant also submitted a Statement in Reply to the Respondent’s statement.

   Legislative framework

2. Section 501(1) of the Act provides that 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.

3. On 22 November 2017 the Respondent gave HPZB a Notice of Intention to Consider Refusal of his application for the visa.  On 12 December 2017 HPZB responded to the Notice.  On 17 December 2018 a delegate of the Minister decided to refuse to grant the visa, and wrote to HPZB advising him of this refusal decision on 19 December 2018.

4. On 21 December 2018 HPZB applied to the Tribunal for review of the refusal decision.

   Issues before the Tribunal

5. The two questions for the Tribunal to determine are, first, whether the Tribunal is satisfied that HPZB passes the character test, under section 501 of the Act, and, if not, secondly, whether HPZB’s application for the visa should be refused pursuant to section 501(1) of the Act.

6. The character test is defined in section 501(6) of the Act. Relevantly, section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record” as defined by section 501(7) of the Act.

7. Relevantly, section 501(7) states:

   (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; …

8. As mentioned above, before the Tribunal were the reasons for sentence by a Judge of the County Court of Victoria on 11 June 2014 (R1, p 35) stating that HPZB was convicted of the Commonwealth offence of Facilitate entry of non-citizen into Australia (people smuggling), for which he was sentenced to three years’ imprisonment, to be released after two years on entering a recognizance of $2,000 to be of good behaviour for 12 months.  The report states that a period of 722 days was taken into account by the Court as pre-sentence detention.

9. The discretion to refuse the visa is enlivened only if a person does not satisfy the decision-maker (in this case the Tribunal) that the person passes the character test.  Once the discretion is enlivened, the decision-maker is obliged by section 499(2A) of the Act to comply with any direction made by the Minister.

   The Ministerial Direction

10. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act.  The delegate who refused to grant the visa to HPZB consulted Direction No. 65, made under section 499.  That direction was revoked on 28 February 2019 and replaced with a fresh direction, Direction No. 79.  As there are no accrued rights, Direction No. 79 is the direction with which the Tribunal must, under section 499(2A) of the Act, comply in considering this matter. 

11. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test.  A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test.  Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

12. Relevantly, the Direction includes the following 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.

13. In deciding whether to refuse a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations out in Part B; which is divided into ‘primary considerations’ and ‘other considerations.’  The primary considerations in Part B are set out in paragraph 11.1 of the Direction.  They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian Community.’

14. Other considerations for visa applicants are set out in paragraph 12(1) of the Direction.  They are: ‘International non-refoulement obligations;’ ‘Impact on family members’; ‘Impact on victims; Impact on Australian business interests’.  The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).  The Tribunal considered each of the primary considerations and, as relevant, the other considerations.

    Does HPZB pass the character test?

15. The total effective prison sentence conferred on HPZB by the Court was three years.  At the commencement of the hearing, the Tribunal ascertained from parties that there was no dispute that the Applicant fails the character test because he has a ‘substantial criminal record’ in the terms set out in the Act by virtue of his conviction and sentence of imprisonment. 

    Finding in respect of the character test

16. On the facts of the conviction made against him and the sentence imposed on 2014, the Tribunal finds that the Applicant fails the character test under section 501(7)(c) of the Act.

17. The discretion is therefore enlivened, and the Tribunal must consider whether to exercise the discretion to refuse the visa given the specific circumstances of the case (see paragraph 6.1(2) of the Direction).

    Background of HPZB

18. HPZB was born in Afghanistan.  He is of the Hazara community, a minority ethnic group, and is a practising Shi’a Muslim.  His wife was born in the same district.  While living in Afghanistan, they had three sons.  As a consequence of his religion and ethnicity, HPZB was subject to persecution by the Taliban, who attained power in Afghanistan in 1997.

19. In 2017 the Migration and Refugee Division of this Tribunal considered a decision to refuse to grant HPZB, his wife, and two of their sons, protection visas.  The Member made certain findings in that hearing and both the Respondent and the Applicant submitted to me that the Tribunal should have regard to those findings, in terms of protection obligations owed to HPZB.

20. In that hearing, the Member accepted that HPZB, his wife and three sons fled Afghanistan for Quetta, Pakistan, in 1998 or early 1999, and they have not returned to Afghanistan.  They fled after the Taliban burned their house and after HPZB’s father was killed. 

21. HPZB added to this information in his written statement saying that his father was killed by gunfire in 1998 in the bazaar where the family rug shop was located.  Mrs A’s brother was also killed by the Taliban. 

22. In Pakistan a fourth son was born in 2000. The family lived in Pakistan as refugees until 2010 (the two older sons leaving Pakistan the year before).  HPZB first ran a fruit and vegetable shop and subsequently entered a partnership with a local man, selling rugs and carpets.  However, the situation in Quetta was also volatile for Shi’a Hazara people.  In 2003 HPZB narrowly escaped serious injury when a bomb exploded at a Hazara mosque he was attending and in 2007 a Sunni extremist group attacked HPZB’s shop, injuring his brother.  They kidnapped the Applicant’s two oldest sons, and he had to pay ransom for their return. 

23. HPZB and Mrs A decided to send the two oldest sons to Indonesia.  HPZB stated that he paid a people smuggler, who he said he knew by more than one name, one of which will be referred to by the Tribunal as ‘HH’ for passage for his sons to Australia.  He said HH told him the boat arrived safely at Christmas Island.  However, both sons are believed to have drowned while travelling on a boat from Indonesia to Australia in 2009 which did not arrive.  HPZB told the Member that none of the passengers on that boat had been heard of since.

24. In October 2010, HPZB, his wife and two younger sons departed Pakistan.  They travelled through Thailand and Malaysia before arriving in Indonesia in January 2011.  In January 2012 they embarked on a boat for Australia, arriving on 19 January 2012.  The four were taken into immigration detention.  In October 2015 the Applicant’s wife and two younger sons were granted bridging visas.

25. The Tribunal notes that on 12 March 2019 HPZB’s wife, and their two younger sons were granted protection visas by the Respondent.  They reside in Melbourne.

    Offending of HPZB

26. In June 2012 HPZB was arrested by the Australian Federal Police and remanded in custody.  His counsel advised that he was charged initially with four charges of people smuggling and two charges of aggravated people smuggling, being 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.  Four of the counts were dropped, and the two counts of aggravated people smuggling went forward to Court. 

27. HPZB pleaded not guilty of both counts.  A jury was empanelled and the Applicant was found not guilty of the first count of aggravated people smuggling, but guilty of the alternative charge of people smuggling simpliciter pursuant to section 233A of the Act.  That section provides that a person (the first person) commits an offence if the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person) and the second person is a non-citizen and had, or has, no lawful right to come to Australia.    In other words, there was a finding by the jury that HPZB facilitated the entry into Australia of a single non-citizen who had no lawful right to come to this country. The maximum penalty for the offence is 10 years’ imprisonment or 1000 penalty units or both. There were a number of witnesses called at the trial but only one was able, from a photo board, to identify HPZB as the person he said he met in Indonesia who arranged his passage to Australia.  That person will be called Witness Q in these reasons.

28. The jury found HPZB not guilty on the second charge of aggravated people smuggling.

29. The Judge found that HPZB’s role could be described as that of an organiser, placing him above the master of a vessel or a crew member, for sentencing purposes, but Her Honour also stated that the jury’s verdict reflected that HPZB’s criminality is at a low level, limited solely to one person over a limited period.  The Judge further found that HPZB’s financial gain was modest but sentenced him on the basis that the offence was committed for financial gain.

30. The Judge accepted that HPZB had no prior criminal history and was a man of otherwise good character and sentenced the Applicant to three years’ imprisonment to commence from the day of sentence.  Her Honour declared that 722 days already spent in detention should be reckoned as time already served, and that HPZB should be released on a recognizance release order in the sum of $2,000 to be of good behaviour for 12 months after serving two years of his sentence.

31. The consequence of the sentence was that HPZB was released from prison in a week of his sentence and immediately transferred into immigration detention, given that he had already served two years in custody and in other circumstances would have been released on recognizance.

    Evidence of HPZB

32. HPZB said he denied being involved in people smuggling, or being a person identified by Witness Q in Court as HH.  HPZB said he was in Indonesia for around a year and although during the hearing he stated that refugees were not allowed to work there, in his statement (A2) he describes working in the carpet business, receiving instalments from shopkeepers and forwarding them to sellers.  He said his brother, who had preceded him to Australia, sent some funds to him in Indonesia, around $3,500.  HPZB said the cost he paid for the boat trip to Australia for him and his family was US$16,000.  HPZB said the money sent by his brother was used for day-to-day expenses and the cost of the journey came from money he had saved from the business he ran in Pakistan, selling rugs.

33. HPZB told the Tribunal that he had not previously seen Witness Q who accused him of facilitating his travel to Australia (which founded the charge of people smuggling simpliciter), and had not seen him before he first saw him at the Melbourne Magistrates’ Court during committal proceedings.

34. HPZB said he denied smuggling Witness Q to Australia, a position he maintained at Court with his not guilty plea and has maintained subsequently.  HPZB said he respected the jury’s decision and he respected the verdict of the Court, and accepted it.  He said he has been consistent from his appearance before the County Court that he respected Australia’s laws.  He said the Court has found that he arranged the Witness Q’s transport to Australia, and he respected that finding.

35. HPZB was asked about a statement in his most recent witness statement (A2) that said he regretted providing a misleading impression that he regretted “actions I took that led me to being [sic] convicted of people smuggling…”   He said his lawyer at the time asked him to include that statement in terms of his, and his families, application for protection visas.  He said the misleading element was that he gave the impression he did something that he was adamant he did not do.

36. When asked directly whether it was true to say he did not feel any remorse, it was because he maintains there was no wrongful conduct, HPZB said: “have not been involved in people smuggling and because of that, I don’t show any remorse.”

37. HPZB said he regretted, now, not giving evidence at the trial.  He said he did not do so, on the advice of his lawyer, but believed that, had he explained in front of the jury the circumstances of his family being in Indonesia, the persecution they had suffered at the hands of the Taliban, there may have been a different outcome at the trial.

38. HPZB was asked about several incidents that were reported to have occurred during his time in immigration detention.  He said that unless an incident resulted in a discussion with staff of the detention centre, the fact that something was recorded did not necessarily mean it was brought to his notice.  He said, in terms of courses he had done while in detention, he had undertaken courses in, amongst others, first aid, learning how to make coffee, occupational health and safety, food safety, numeracy and food handling.  He has also undertaken English classes and computer classes, and undertaken a programme designed to help him quit smoking.

39. Mr Cuthbert asked HPZB whether he thought he had made a positive contribution since arriving in Australia.  The Applicant said that he had been either in custody or immigration detention since his arrival but, if released, he intended to set up a coffee shop to utilise his new skills, acquired in prison.  He plans to establish this shop perhaps in partnership with one of his sons.

40. HPZB said that he had been assessed as “low security” all the time he has been detained.  He said he had been allowed home visits on two occasions, escorted by detention centre official visitors, but unaccompanied by staff.  He said he is permitted to attend the local mosque on Friday each week, and participates in prayer services with detention centre staff waiting outside.  HPZB said he was also permitted a hospital visit when his wife suffered a serious stroke in 2016.

41. HPZB said he has a brother in Melbourne who is unmarried and has no children.  He said neither of his younger sons has a partner or children.  He said his only other relative in Australia is his wife, Mrs A.

42. HPZB said he would never get involved in people smuggling because, having lost two sons at sea, he found “such a thing” abhorrent.

    Evidence of Ms Lechner

43. The Tribunal had before it a report of Ms Lechner dated 18 November 2019 (A4, item 2).  Ms Lechner examined HPZB on 6 November 2019 at Melbourne Immigration Transit Accommodation.

44. Ms Lechner told the Tribunal that there is no particular diagnostic tool tailored to assess re-offending propensity of persons convicted of people smuggling offences.  She said what she did was look at forensic factors such as: prior offending, stability of home life, and the person’s mental health.  She said, in her clinical opinion, noting that HPZB denies his offending but fully accepts the verdict of the Court, presents with an “extremely low risk” of re-offending.

45. Ms Lechner referred to page eight of her report where she set out a question asked by the legal representatives of HPZB in their letter of instruction dated 31 October 2019, and her response:

    Having regard to the matters identified in response to questions ii) and iii) above, what is [HPZB’s] risk of re-offending in the future.  To the extent possible, please explain whether the risk is different for different kinds of offending (for example people smuggling compared to other types of offending)?

    There are not, to my knowledge, any specific assessment tools in respect of the offence of “people smuggling”.  However in a more general sense, [HPZB] presents as a “low” risk of offending for the following reasons: i) he has no prior history of offending; ii) he has a stable family and employment history; iii) he has no substance abuse problems or personality disorder issues; iv) he has insight regarding the finding of guilt by the Australian legal system and fully accepts this; and v) he has the ongoing support of his family.  People smuggling appears to be highly contextual in nature (that is, a function of place and circumstance) and [HPZB’s] circumstances are now totally different to his circumstances at the time of the alleged [sic] offending.

1. In terms of whether HPZB’s past offending was probative of likelihood of re-offending, Ms Lechner said the offending, in her opinion, appears to be contextually-based.  She said she “would be astonished” if HPZB re-offended.  Mr Aleksov put to Ms Lechner that every human presents with some capacity to offend, and, given this, asked where she would put HPZB in the spectrum of the population, and Ms Lechner responded “at the very low end”.

2. Under cross-examination by Mr Cuthbert, Ms Lechner agreed that HPZB showed insight into his engagement with the Court system, that he did accept his punishment and the whole process but did not express feelings of guilt.  Ms Lechner said that remorse and insight is one factor in assessing a risk of a person re-offending, but only one factor to take into account.

3. When asked directly by the Tribunal if HPZB evinced any signs of resentment for his conviction, if he denied the offending, Ms Lechner said “none at all, which was quite remarkable.”

   Evidence of Mrs A

4. Mrs A provided written statements to the Tribunal, the most recent dated 4 February 2019.  She said she had talked about HPZB’s conviction with him many times, but that he “had never conducted himself in that way”.  She said she was surprised when the allegation was first made against her husband, and that the process leading up to the trial and the trial itself was very difficult for her.

5. In terms of who HH was, Mrs A said he was the smuggler who had brought her and HPZB and their sons to Australia.

6. Mrs A told the Tribunal, in answer to direct questions, that she suffered a stroke while the family was living in Quetta.  She said the effects led to paralysis on her right side.  She said she had slowly improved but her right arm remains weak.  Mrs A confirmed to the Tribunal that she had a further stroke since being in Australia in 2016.  Mrs A said as a result of the second stroke, her memory has been affected and she has instability when she walks.  When asked if she drives, Mrs A said she cannot, because of a lack of strength in her right foot.

   Consideration of the Direction

7. The Tribunal considered each of the primary and other considerations set out in Part B of Direction No. 79 (the Direction).

   Primary consideration - Protection of the Australian community (paragraph 11.1)

8. The Direction requires decision-makers, including this Tribunal, to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

9. Counsel for the Applicant handed up the decision of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. The coram was McKerracher, Derrington and Colvin JJ. Mr Aleksov submitted that, although Derrington J was in the minority, the Tribunal should look at His Honour’s judgment as a correct statement of the law and that a correct performance of the Tribunal’s function requires an assessment of the Applicant’s evidence even if inconsistent with, or incompatible with, the factual premises of a regularly and lawfully entered conviction. One reason why the Tribunal was urged to take this path was because HPZB took a decision not to give evidence at his trial, and is now giving his account of the events. The Applicant wrote:

   As the evidence presented to the jury is different from the evidence presented to the Tribunal, the Tribunal should not shy away from performing its function to assess all of that evidence.

10. In response to this submission, the judgment of Colvin J in the majority in HZCP is relevant, where His Honour said, at [181]:

    In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence.  They require its existence and confer no power to go behind it in the course of the exercise of the power.  In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed (there may be others).  The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute.  Other statutory powers may require the fact of the conviction or sentence to be accepted and given effect in the course of the decision-making process.

    (Emphasis added.)

11. See also NDBR v Minister for Home Affairs [2019] FCA 1631 (Moshinsky J), at [47], where His Honour restated the proposition that, where a conviction or sentence, or both, are the foundation of the exercise of a power vested in the Minister, it is not open to the Tribunal, when reviewing the decision of the Minister (or, in this case, the Minister’s delegate), to impugn or go behind the conviction or sentence or both (as the case may be).

12. In this case, the authority for the Tribunal to consider submissions relating to the exercise of the discretion to, nevertheless, grant HPZB a visa, him having failed the statutory character test, logically relies on the foundation of the conviction and sentence for a period of more than 12 months.  The Tribunal reiterates what was made clear to parties at the hearing, that the line of judicial authority that the fact of the conviction and sentence cannot be impugned, forms the starting-point for the Tribunal’s task.

13. However, it is also relevant to note that in the original hearing of Re:HZCP and Minister for Immigration and Border Protection [2017] AATA 775, Deputy President Kendall (as His Honour then was) stated at [40]:

    The Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135; Milner and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs [1983] AATA 180.

14. McKerracher J in HZCP explicitly noted, at [30] that the last sentence in paragraph [40] of Deputy President Kendall’s decision reflects the applicable principle of law.

15. To the extent that HPZB continues to deny his offending, that denial is repudiated by the Tribunal.  However, consistent with the decision of Davies J (sitting as President of this Tribunal) in Du Pont, matters pertaining to the conviction may be presented by an Applicant, and to that degree the Tribunal accepts that it was unchallenged by the Respondent that HPZB and his family had fled Afghanistan in dire circumstances, that his brother had been shot, and his father killed, and that the two older sons of the Applicant had embarked on a vessel, bound for Australia, but had subsequently disappeared. 

16. It is also relevant to the Tribunal that Her Honour the sentencing Judge found, whilst recording the undeniable fact that the offence of people smuggling is very serious and risks Australia’s bio  - and national security, as well as placing the persons smuggled in grave danger (including danger of perishing), that HPZB’s “criminality is at a low level” (R1, p 37) and the financial gain to HPZB was “a modest amount” (R1, p 40).

17. The Direction requires the Tribunal to consider the seriousness of the offence, the sentence imposed and the frequency of a non-citizen’s offending and any trend of increasing seriousness.

18. In this matter, the Tribunal finds that the offence is objectively serious.  It does exploit persons who are vulnerable, for financial gain.  It also exposes persons to the real prospect of death on the high seas.  The Tribunal does record that HPZB was travelling with his family on a boat in the open sea to Australia, so to that extent he is not in the category of a person not also personally at risk, such as some people smugglers who are not themselves travelling and involved purely for evil mercantile gain.

19. There is no evidence before the Tribunal of any other offending.  The sentencing Judge remarked on this in her sentencing remarks.  Accordingly, any assessment of trend of increasing seriousness or cumulative nature of offending is not relevant in HPZB’s case.  It is relevant that the sentencing Judge imposed a sentence at the lower end of the range available to her, and that is a factor I am bound to take into account under paragraph 11.1.1(1)(f) of the Direction.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (sub-paragraph 11.1.2)

20. In terms of the risk to the Australian community if HPZB re-offends or engages in other serious conduct, the Tribunal is satisfied that this risk is low.  In this regard, the Direction requires the Tribunal, under paragraph 11.1.2(3)(b)(i), to give due weight to evidence from an authoritative source on the likelihood of the non-citizen re-offending.  In this regard, I gave significant weight to the report and oral evidence of Ms Lechner.  She has the professional expertise to assess HPZB, and measure the indicia that would be relevant to a person such as him re-offending, and how it applies personally.  Her conclusion was that there was a low risk.

21. Lest it be interpreted that the Tribunal accepts the suggestion in the question put to Ms Lechner by counsel for the Applicant that HPZB may be in the category of a person who has “never offended but could”, the Tribunal emphatically rejects that proposition.  He has offended.  A jury, properly instructed, has found that beyond reasonable doubt.  As Mathews J, sitting as a presidential member of the Tribunal, stated in Re: Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51], as reminded to the Tribunal by Mr Cuthbert:

    51. Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.

22. The Tribunal does consider, however, that the next sentence in the same paragraph in Lam is relevantly applicable to HPZB:

    However in the applicant's case, for the reasons I have given, I consider that the risk of recidivism is considerably lower than one would expect of a person with his record of behaviour. Overall, I consider that the risk of the applicant committing further offences is a low one.

23. On the papers before the Tribunal, HPZB’s conduct in immigration detention has been satisfactory, perhaps it could be classified as very satisfactory given the length of time he has been in detention.  He has undertaken a number of courses.  He is trusted to undertake outside visits with minimal supervision, such as his weekly attendance at the Mosque, and on at least two occasions, with no supervision other than an authorised designated person.  Ms Curr wrote in her statement before the Tribunal dated 29 November 2019 (Exhibit A5):

    From October 2010 to May 2015, I was authorised as a Designated Person by immigration to take detained people out on excursions without escort.  In the 4.5 years of this activity I took families, children, single men and women out to parks, picnics, shopping and home visits.  No one escaped during these excursions.  Only trusted detainees with no security concerns were given permission to go out with me.

    …

    I note that while the other men designated under the 501 character provision have been placed in the separate high security MITA North compound, [HPZB] remains in MITA South with the other low security detainees.  I note also that the Commonwealth Ombudsman has recommended that this man be allowed to live with his family in the community.

24. The Direction urges decision-makers to consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.  The maximum period for the class of visa being sought by HPZB is three years.  It is a renewable visa.  The characterisation of the visa is that Australia has accepted, through the executive government, that protection is owed to the person granted the visa.  The Tribunal considers that the length of the visa, and the fact that it must be renewed, or a different class of visa sought, is relevant to the exercise of the discretion in this matter.

25. The Tribunal assesses, given that all of the evidence points to a low risk of re-offending and taking into account the Direction’s exhortation that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct, this primary consideration weighs against HPZB being granted the visa, but given the totality of the circumstances, not heavily so.

    Primary consideration – Best interests of minor children in Australia affected by the decision (paragraph 11.2)

26. In answer to direct questions from the Tribunal, HPZB confirmed that his two surviving sons are aged 22 and 18.  He said his brother who lives in Australia does not have children.  Given these facts, it was uncontested by parties that this primary consideration was not engaged in this review.

27. The Tribunal finds that this primary consideration weighs neutrally.

    Primary consideration – Expectations of the Australian community (paragraph 11.3)

28. The Direction reminds decision-makers that the Australian community expects non-citizens to obey Australian laws while in this country. The Tribunal would add that expectation is no different from what is expected of Australian citizens, whether by birth or conferral.

29. Mr Aleksov, in his oral submissions, submitted that the Tribunal will be “required” to find that this primary consideration weighs against HPZB.  Mr Cuthbert submitted that the Tribunal is bound to apply the decision of the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185. In that decision Charlesworth J, who was in the majority, considered that paragraph 11.5 of Direction No. 65 (the wording of which confirms to paragraph 11.3 of the current Direction) turned on two questions. The first question is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community, and, secondly, whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case. Her Honour said both of these questions should be answered in the affirmative.

30. The Tribunal adopts this approach.  However, while the primary consideration, as interpreted, must weigh against a non-citizen who has an adverse character assessment, like HPZB, that does not make this consideration, in the Tribunal’s view, a ‘dead letter’.  That is because the relative weight that may be given by a decision-maker against a person may undulate according to the particular circumstances that are relevant.

31. In this case, the Tribunal finds that, notwithstanding the jury’s considered view that HPZB was guilty only of the offence of people smuggling simpliciter, i.e. the bringing to Australia of a single person, this very category of offence, of all offences, goes to the heart of undermining an orderly immigration regime.  The Respondent submitted that the offence is objectively serious, citing a number of authorities, for instance R v Karabi [2012] QCA 47, where Muir JA (Fraser and Chesterman JJA concurring) stated, at [21]:

    [people smuggling] threatens the orderly administration of immigration laws, imposes a financial burden on the Australian public; necessitates the deployment of military, customs and other governmental resources; encourages official corruption in other nations and exploits and imperils the health and lives of those carried, or attempted to be carried, into Australia.

32. The Respondent also drew the Tribunal’s attention to the Full Federal Court decision Jaffarie v Director-General of Security [2014] FCAFC 102, (2014) 226 FCR 505, but the Tribunal notes that the Court there was considering the matter of aggravated people smuggling, an offence punishable by a sentence of up to 20 years under section 233C of the Act; that is not the offence for which HPZB was convicted; on point of fact, he was found not guilty by the jury in regard to the two counts of aggravated people smuggling on the indictment.

33. It is relevant that in Jaffarie, Flick and Perram JJ make the point, at paragraph [79] that the impact upon Australia’s security of “people smuggling” may vary from case to case, and gave two examples, the smuggling into Australia of fruit-pickers to assist in harvesting, or the smuggling into Australia of nuns, where neither activity may constitute a “serious threat”. HPZB’s offence was not in either of these two categories, but it would be wrong if the Tribunal did not view it in its factual context, the bringing to Australia of a single individual.

34. Notwithstanding, the Tribunal considers that the Australian community has a low tolerance of this sort of offending, given that it has directly led to tragedies at sea, an historic burgeoning of illegal maritime arrivals in Australia, a significant financial cost to Australia and, perhaps most significantly, a disruption to other non-citizens seeking to come to Australia to settle by legitimate means, and the loss of that privilege for many of them, owing to the limitations imposed by successive governments on the overall intake.  

35. The Tribunal finds that this consideration weighs against granting the visa, but not necessarily heavily so.

    Other considerations

    International non-refoulement obligations (paragraph 12.1)

36. The Respondent noted that the Tribunal made a decision with respect to HPZB (and indeed Mrs A and two of their sons) on 23 August 2017 which determined that, at that date, Australia owed HPZB protection obligations, and that there was no new evidence to suggest that this position has changed.

37. Mr Cuthbert confirmed, in response to a direct question from the Tribunal, that it was the Respondent’s position that the conclusions made by the Member in 2017 were consistent with what the Tribunal should currently find.  Mr Aleksov and Ms Drago, in their submissions for the Applicant, echoed this view.

38. The Tribunal considers that the learned Member undertook a thorough assessment of the particular claims HPZB made, including examining as far as possible, the claims of persecution and harm, and potential harm if repatriated, that adhered, against objective country information relating to Afghanistan.  The Tribunal adopts those findings, and notes that my satisfaction in so doing is reinforced by the Respondent’s more recent decision in March 2019 to grant protection visas to Mrs A and HPZB’s two younger sons, whose claims are not materially different from the Applicant’s.  This axiomatically means that in March 2019 the Respondent accepted the harm risk was at a level that invoked Australia’s international obligations.

39. The Tribunal finds that this consideration weighs in favour of granting the visa, and heavily so.

    Impact on family members (in Australia)(paragraph 12.2)

40. The Direction requires a decision-maker to consider the impact of refusing to grant the visa on immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.  It would appear to the Tribunal that none of HPZB’s family members are strictly in any of these categories: Mrs A and their two younger sons hold protection visas, as does the Applicant’s brother. 

41. However, while the protection visas they hold do not give a right to indefinite residence, they are renewable and the timeframe is not able to be forecast, because of the acceptance by the Respondent of the non-refoulement obligation.  The Direction at paragraph 12.1(1) makes clear that the Tribunal is not limited to the considerations spelt out in the Direction and so I adopt the approach that it is relevant, in this case where the evidence is that the immediate family members of HPZB are only his wife, two surviving sons and brother all in Australia on protection visas, to consider these persons in making an assessment under the heading of this consideration.

1. There is no doubt that HPZB’s prolonged separation from his family, first in remand custody and thence in immigration detention, has had a significant detrimental effect on Mrs A and their two younger sons.

2. There was a medical report before the Tribunal from Dr Charan Koghar (R1, p 152), Mrs A’s general practitioner, listing a range of health challenges facing her: apart from the cerebral aneurysm in 2016 (her second), the doctor recorded: poorly controlled diabetes, lumbar back pain owing to a disc prolapse, signs of anxiety disorder, left Achilles tendinopathy, high cholesterol, and two other conditions. 

3. Dr Koghar’s opinion was that because of her medical history, Mrs A is at high risk of further cerebro-vascular accidents or strokes. He also stated that she likely suffered from an anxiety disorder which was exacerbated (at that time) by her own visa uncertainty and by her husband’s immigration detention.  This report was written before Mrs A and her sons were granted protection visas.

4. It is also evident from his written statement (R1, p 154) that the Applicant’s brother, who is significantly younger than HPZB, has been affected.  He wrote (as written):

   Since my brother [HPZB] is in Detention centre and he is unable to live with us as a family member that we used to have him before it is impacting on my emotional wellbeing which is also impacting my physical health.  My mother informed me that I was so young when my father was killed.  Since then I was looked after by my brother, [HPZB], who was caring for me for my day to day care needs... For me my brother is like my father and his absence is effecting me as I am missing my mentor who support me in all difficult times.

5. Both of HPZB’s younger sons have provided a number of written statements in the papers before the Tribunal.  HPZB’s older surviving son provided a statutory declaration (R1, p 163) written on 1 December 2017.  He wrote about his separation from his father for (then) nearly six years and about a work injury he sustained, which has led to ongoing health problems.  He also wrote about how he has supported Mrs A and his brother financially with their father in detention.

6. HPZB’s youngest son also provided a statutory declaration (R1, p 156) stating that he was 11 years of age when his father was “taken away from me”.  Both sons reported that they visit their father every weekend with Mrs A.

7. The Tribunal notes that HPZB’s youngest son is in the process of completing a university degree and is also working part-time at a Victorian government agency and a very favourable testimonial from his supervisor at that agency was before me, illustrating the positive contribution he is beginning to make.

8. Taking all the written evidence from the named members of the family into account, and the oral evidence Mrs A gave at the hearing, the Tribunal finds that this consideration weighs heavily in favour of granting the visa.

   Impact on victims (paragraph 12.3)

9. This part of the Direction requires decision-makers to consider the impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.

10. In this matter the only relevant person is the single witness whose evidence was that HPZB facilitated his illegal entry to Australia.  There was no evidence from parties that Witness Q knew of HPZB’s visa application.  Accordingly, this consideration is not engaged.

11. The Tribunal finds that this consideration weighs neutrally in this assessment.

    Impact on Australian business interests (paragraph 12.4)

12. This consideration requires a decision-maker to consider the impact on Australia’s business interests if a non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of an important service in Australia. 

13. Because he has been in custody or detention since arriving in Australia in 2012, HPZB axiomatically has no work history in Australia.  There was no other evidence before the Tribunal that this consideration is engaged.

14. The Tribunal finds that this consideration weighs neutrally in this assessment.

    Summary – should the discretion to grant the visa be exercised?

15. The Tribunal has found that the first primary consideration weighs against granting the visa, but not heavily so.  The Tribunal finds that the second primary consideration is not engaged and therefore weighs neutrally.  The third primary consideration weighs against granting the visa, but not necessarily heavily so.  Of the other considerations, the Tribunal finds that the consideration relating to non-refoulement obligations weighs heavily in favour of granting the visa, as does the impact on family members.  The Tribunal finds that the other two other considerations are not engaged.

16. In this matter, extensive submissions were made by counsel for the Applicant that the Tribunal should examine the reality that, if the Tribunal affirms the decision that HPZB’s protection visa should be refused, the outcome would be that the Applicant would remain in immigration detention for an undefined period, pending other options available to the Minister.  Mr Aleksov said that it was not practicable for HPZB to be repatriated to Afghanistan in the circumstance that Australia owes him protection obligations. 

17. Mr Cuthbert said that, while the Respondent submits that the 2017 Tribunal decision which found that protection obligations were owed was the current situation, and there was no evidence that situation has changed, it clearly could.  The Respondent said that the Minister can consider other management options relating to the Applicant.

18. The Tribunal considers this to be an unsatisfactory situation.  In terms of the task before me, I am considering whether the decision to refuse the protection visa was correct in law and, where a discretionary power is available, whether that discretion was exercised in a preferable manner.  I do not consider it is a useful exercise for the Tribunal to embark on a speculative exercise in terms of the disposition of the Applicant. 

19. I do not accept various submissions made by the representatives of the Applicant that I should interrogate the Respondent about whether HPZB has been, or is being, considered for the grant of a different visa, or indeed whether the Minister might authorise a residential determination, where the Applicant can remain in technical immigration detention, but be permitted to be at home.  I think that to undertake that task may lead the Tribunal into a jurisdictional error of asking itself the wrong question or considering a matter which may not be relevant.

20. But this cuts both ways.  Equally, I do not consider that it is useful for the Respondent to submit, having advised the Tribunal that the adoption of the learned Tribunal Member’s 2017 findings about protection obligations being owed to HPZB is also the Minister’s position, that it is also satisfactory, in considering the disposition of HPZB, to rely on an inchoate view about the civil situation in Afghanistan, where there is no evidence before the Tribunal from an authoritative source that situation is improving, at least in respect of a person like HPZB whose ethnicity and religion have already led to direct physical attack and the death of two family members.  As I have remarked above, as recently as March this year the Respondent accepted that the obligations were ‘current’.

21. While section 499 makes clear that the Tribunal must comply with the considerations set out in the Direction, I am not confined only to those considerations.  Indeed, the last sentence of paragraph 6.1(2) of the Direction states:

    Where the discretion to refuse to grant a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.   

    (Emphasis added.)

22. The specific circumstances of this case are several.  On the one hand, HPZB has been convicted of a serious offence that, as I have said above, goes to the heart of Australia’s regime of border control.  He continues to deny his offending, which must be depreciated, but tempers that stance by what I found to be a genuine and unresentful acceptance that the criminal justice system had returned a finding of guilt and had determined the appropriate level of punishment. 

23. On the other hand, that appropriate level of punishment, determined by a Judge charged with judicial discretion available, was at the lower end of the range of sentences available to Her Honour.  The Judge also made a finding, which I cannot contradict, that any financial return to HPZB was minimal.  I believe it is relevant to the Tribunal’s assessment of the specific circumstances of the case that HPZB was sentenced by the Court to three years (two years before parole) in 2014.  At that time he had already been in custody for more than two years.  That is more than five years ago.

24. Another specific circumstance of this case is that the Applicant’s wife suffers significant, in fact perilous, ill health, and has suffered further major illness since arriving in Australia.  There was no challenge to the objective medical evidence before the Tribunal in that regard (see R1, p 152). 

25. In addition, another specific circumstance in this case is that the Respondent has recently exercised the discretion to grant Mrs A and the remaining members of the family the same class of protection visa as has been refused to HPZB.  Those visa grants in fact occurred after the last hearing HPZB had before the Tribunal but before the learned Senior Member had made a decision.

26. Finally, an important specific circumstance is the professional opinion of Ms Lechner in regard to HPZB’s likelihood of re-offending.  The Tribunal cannot agree with submissions made on the Applicant’s behalf that the likelihood of him re-offending are “zero”, but on the facts and taking into account this professional opinion, which consistent with paragraph 8(2) of the Direction should be given appropriate weight, I do find that the likelihood of re-offending is low, given there is no evidence whatsoever of any prior (or subsequent) criminal conduct, in Australia or elsewhere.

27. As mentioned above, the Direction also requires me to take into account the length of the visa sought.  In this case the maximum period for a Temporary Protection (Class XD) visa is three years.  This class of visa does not confer any permanent right for a non-citizen to remain in Australia after the expiry of the visa.  A holder may, however, seek to renew the visa.

28. Representatives of the Applicant submitted that it was unlikely that HPZB would offend in the same manner as the conviction against him, because he could not do so from Australia.  The Tribunal does not accept that submission, because lamentably there is ample evidence of persons, both citizens and non-citizens, facilitating people smuggling trade from Australian shores.  However, my considered conclusion is, given the Judge’s assessment of HPZB’s level of involvement, it is very unlikely in his case.  Noting that a decision-maker must consider the likelihood of an Applicant re-offending not only in regard to the same offence or offences of which the non-citizen has been convicted, but of re-offending at large, I am satisfied that the Applicant’s likelihood of re-offending at large is low.

29. The Tribunal notes that the class of visa sought by HPZB contains a travel restriction condition, visa condition 8570.  Visa condition 8570 applies to primary and secondary holders of temporary protection (subclass 785) visas, among others.  Visa condition 8570 provides that the holder must not enter a ‘reference country’, which means a country by reference to which the holder was found to be a person to whom Australia has protection obligations (in this case, Afghanistan).  Visa condition 8570 also provides that the holder must not enter any other country unless the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry, and that the Minister has approved the entry in writing.  In the Tribunal’s assessment, given the offence for which HPZB was convicted, a Minister would be unlikely to give permission for the Applicant to enter Indonesia. 

    Conclusion

30. Informed by the Principles at paragraph 6.3, the Tribunal must look at the relevant considerations in Part B in totality to determine whether HPZB will forfeit the privilege of being granted a visa. In other words, whether or not the discretionary power provided by section 501(1) of the Act should be exercised.

31. After carefully considering all the evidence before the Tribunal, I am satisfied that, based on the specific circumstances of the case, and based on the fact that the class of visa sought is limited in tenure, which will operate in a protective sense in relation to any risk of re-offending, the discretion available to grant HPZB a protection visa should be exercised, and further I find that the Respondent should so exercise that power to grant the visa consistent with this decision.

    DECISION

32. The Tribunal decides to:

    (1)set aside the decision of the delegate dated 17 December 2018; and

    (2)remit the matter to the Respondent with a direction that the Applicant’s application for a Temporary Protection (Class XD) visa not be refused under section 501 of the Migration Act 1958, in accordance with this decision.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 13 December 2019

Date of hearing:

4 December 2019

Counsel for the Applicant:

Counsel for the Applicant

Solicitors for the Applicant

Ms Veronika Drago

Mr Angel Aleksov

Asylum Seeker Resource Centre

151.    Advocate for the Respondent:

Mr Neil Cuthbert

152.    Solicitors for the Respondent:

Clayton Utz