JYSF and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 65
•3 February 2025
JYSF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 65 (3 February 2025)
Applicant:JSYF
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9263
Tribunal: Senior Member A Clues
Place:Hobart
Date:3 February 2025
Decision:The Tribunal affirms the decision under review
.................................[sgd]..............................
Senior Member A Clues
Catchwords
MIGRATION - refusal of protection visa - family violence - violent crime against a woman - protection finding - non-refoulement obligation – BVR granted – Direction 110
Legislation –
Migration Act 1958 (Cth)
Migration Regulations 1994
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)Cases
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DLZZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3922
Chu Kheng Lim v Minister for immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
VRRQ v Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 9XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (XKTK)
Secondary Materials
Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, dated 7 June 2024, (the Direction) is applicable.
Statement of Reasons
INTRODUCTION
The applicant seeks review of a decision made by a delegate of the respondent dated 13 November 2024 to refuse to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa (the visa) on the basis that the applicant does not pass the character test under s 501(1) of the Migration Act1958 (Cth) (the Act).
The application for review was heard in person in Sydney on 16 and 17 January 2025. Both parties were legally represented. The applicant gave oral evidence with the assistance of a Rohingyan interpreter. Oral evidence was also given on behalf of the applicant by Ms Bostock (forensic psychologist). Final submissions were made on 17 January 2025. The Tribunal granted leave for the applicant to make supplementary written submissions in relation to the effect of the Federal Court decision of XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14 (XKTK) delivered on 22 January 2025.
A hearing book was prepared by the respondent and the documents numbered 1 to 366 contained in that hearing book were tendered in evidence by consent.
BACKGROUND
The applicant was born in December 1987. He is 37 years old. He is from Yaungchaung village, Maungdaw city, Rakhine State, Myanmar. He was born there and lived with his parents and 8 siblings. From the age of 10 he was forced by the government to clear forests near his village and in 2012 the government confiscated half his father’s land. In June 2012 he was in the mosque in his village and a gang organised by the Nasaka (border security force) surrounded the mosque and shot people, killing 2 to 3 and wounding at least 10. The market was also attacked that day. People were unable to leave their homes because it became too dangerous to be in the streets, and 2 days later a neighbouring village, Samunga Fara, was burnt to the ground with three hundred villagers killed. His father gave him money to escape, and he caught a boat to Bangladesh where he contacted a smuggler who organised for him to travel to Australia.
The applicant’s migration history is set out in the “Protection (Class XA) Visa Assessment” (the protection assessment) dated 7 May 2024.[1] On 17 August 2012 the applicant arrived in Australia on a vessel and was refused immigration clearance. He was placed in immigration detention under s 189(3) of the Act. He was released from detention on 6 December 2012. On 6 September 2013, the applicant applied for a XA-866 (Permanent Protection) visa. As a result of legislative amendments, the application was eventually converted into an application for a Temporary Protection (XD-785) visa (the visa). On 16 September 2013, a WE050 bridging visa was granted. On 27 October 2016, that visa was cancelled, and the applicant was detained under s 189(1). On 17 July 2023, the Minister made ‘a residence determination’ and allowed the applicant to reside in the community.
[1] HB 187-188
A protection finding was made in favour of the applicant with respect to Myanmar.[2] The applicant is a Rohingyan Muslim, who is stateless and has no country to return to. He therefore meets the criteria for the grant of the visa as set out in s 36(2)(a) of the Act.
[2] HB 28
On 20 September 2024, the respondent provided the applicant with a notice of intention to consider refusal of the applicant’s application for the visa under s 501(1) of the Act. On 4 October 2024, the applicant responded to the notice and provided documents in support. On 13 November 2024, the following occurred:
·A decision was made to refuse to grant the visa to the applicant (the refusal decision).
·The applicant was advised of the refusal decision.[3]
[3] HB 11-30
·The applicant made an application for review by the Tribunal.[4]
[4] HB 4-13
·The applicant was granted a Class WR Bridging R (subclass 070) visa (BVR) with conditions.[5]
[5] HB 286-296
8.As the application for review was lodged within 9 days after the refusal decision was notified, the Tribunal has jurisdiction to hear and determine the application.
The applicant is a person in respect of whom Australia has non-refoulement obligations, which means that he will not be removed to Myanmar. The applicant is a person to whom the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ) applies, such that he cannot be subject to indefinite detention because there is no real prospect that it will be practicable to remove him in the reasonably foreseeable future. As the applicant’s removal to Myanmar is not authorised, he could only be removed to a third country and as there is currently no prospect of this, he will continue to reside in the community regardless of whether his application for the visa is refused or not.[6]
[6] HB 28
The applicant’s BVR is subject to certain conditions, including: not to become involved in disruptive activities or violence threatening harm to anyone within the community, daily reporting by telephone, notifying his residential address and any change in personal details, assisting with removal from Australia, obtaining approval to work in certain occupations, notifying of any change in employment, not to acquire certain goods, attending interviews if directed, notifying of any travel and not to contact the victim or a family member of the victim.
The applicant’s offending history
In or about April 2016, the applicant’s brother was killed in Australia.[7] At some point after that, his brother’s wife (Ms G) and her three children moved in with the applicant. The children were aged 6, 2 and 12 weeks at the time.[8] On 4 October 2016, the applicant committed the following crimes against Ms G:
[7] HB 21 and 214
[8] HB 216
·assault occasioning actual bodily harm (DV); and
·stalk/intimidate intend fear physical etc harm (domestic).
On 17 April 2018, the applicant pleaded guilty to those crimes but only after he heard the evidence in court given by Ms G and the neighbours.
The sentencing Magistrate made the following comments on sentencing the applicant with respect to these crimes:
In relation to these matters I take into account that you have finally pleaded guilty. I can indicate that you have obviously considered that overnight after hearing the evidence of your former partner and former sister-in-law. It is clear, on my assessment of her evidence, that she was a reliable and credible witness. She certainly did not embellish in her evidence and in fact probably gave evidence in some ways that did not go into detail one might have expected about the nature of the assault.
You were also confronted by the evidence of the neighbours who heard certain things being said inside the premises and again they were taking actions which I accept they were reliable witnesses. They certainly may have misheard the words but what was clear from the evidence was that the children were afraid and that was something that was indicated in the tone of their voices rather than the words of what was said. I accept your pleas of guilty, I accept your disadvantaged background, they are relevant considerations. I accept the evidence that I heard yesterday that your brother was killed.
It seemed to be unchallenged that it was a death by homicide, by murder but it is the circumstance where I also have to consider that that was the husband of the lady you assaulted. Her circumstances were equally, if not more, tragic. I take into account, as I said, your plea of guilty. It can only be of limited assistance in your circumstances by virtue of its lateness and particularly the fact that [Ms G] was required to give evidence in Court. I do take into account that as a result of these matters you have been in immigration detention and that has some impact on the remand period on your liberty. Whatever happens as a result of this is not something that I can take into account and there are numerous authorities on that including Dao v The Queen.
In relation to the assault itself, it was savage in nature. I note the injuries were not as significant as this Court would see in terms of an assault occasion actual bodily harm offence. But the hitting and kicking was of a repeated nature and that was effectively unchallenged. Of concern, there was pulling of her hair and the production of a knife accompanied by threats. Those matters are objectively serious and certainly are not tolerated within a family home unit in Australia. In relation to those matters, I take into account that you gave a version to police during an interview with a Rohingyan interpreter.
Even considering the variations throughout that interview as to what you said you did, it was clear to me on reading that interview that you were aware of the nature of the assault that you have now pleaded guilty to. Assessing all of those matters, particularly the objective seriousness 5 of the offences themselves, I am satisfied that the s 5 threshold has been crossed. In relation to those matters, I note that these are the first offences that you have had. In terms of what occurs in the future as to your prospects of rehabilitation, I do not have any significant evidence before me and I cannot make any significant findings one way or another.
As I said, whilst the s 5 threshold has been crossed, I note these are first offences and I take into account your prior good character.
IN RELATION TO THE INTIMIDATE CHARGE AND THE CHARGE OF ASSAULT OCCASION ACTUAL BODILY HARM, THE PLEAS OF GUILTY ARE ACCEPTED. YOU ARE CONVICTED. IN RELATION TO EACH MATTER, I SENTENCE YOU A TERM OF IMPRISONMENT OF 12 MONTHS. I SUSPEND THAT SENTENCE PURSUANT TO S 12 OF THE CRIMES (SENTENCING AND PROCEDURE) ACT UPON YOU ENTERING INTO A BOND.[9]
[9] HB 36-37
At the hearing there was some debate in relation to the facts surrounding the crimes committed by the applicant. It was submitted on behalf of the applicant that it is not clear from the sentencing Magistrate’s comments whether the facts in the Police ‘Facts Sheet’[10] were accepted by the applicant. The Magistrate does say, “If there is no agreement as to the facts I’m happy to rely upon the evidence itself”, and Counsel for the applicant submitted: “I think they’re much the same.”[11]
[10] HB 252-255
[11] HB 35
15.On the day after the commission of the crimes, 5 October 2016, Ms G attended a medical practitioner who examined her. She told the medical practitioner at that time that the applicant “had come home at about 9pm on the 4th of October 2016. He had brought knives and chilli with him. He had said ‘I will slaughter you and put chilli in the secret place.’ He kicked at her. She escaped and ran into the road. He grabbed her hair and pulled her back into the house and started beating her. He punched her in the back.”[12]
[12] HB 259
16.Based on the comments made by the sentencing Magistrate and the record made by the medical practitioner shortly after the offending occurred, the Tribunal finds that:
·The assault was “savage in nature.”
·There was hitting and kicking.
·There was pulling of Ms G’s hair and the production of a knife accompanied by threats to her life.
·Ms G tried to escape.
·The victims’ children were present and were afraid.
17.The Tribunal agrees with the sentencing Magistrate’s statement that these matters are objectively serious and certainly are not tolerated within a family unit in Australia.
18.Ms G told the medical practitioner that “she had pain on the right side of her jaw on opening her mouth widely. She said that she was sore across the top of her scalp where her hair had been pulled. She had pain along the left sternomastoid muscle in the neck… Her back was sore where he had punched her…. She was sore along her right chest wall from the beating and on the top of her right foot”.[13] The medical practitioner noted that on the right side of Ms G’s face there was “an area redness and swelling over the right cheekbone; an interrupted linear abrasion, 3cm long, extending from the zygoma towards an indistinct pale blue bruise 3cm x 1cm over the upper lateral part of the right mandible (jaw bone).” It was further noted that on the left side of her neck there was a “pale bruise posterior to the lower end of the left sternomastoid muscle.”[14]
[13] HB 260
[14] HB 261
19.The medical practitioner noted that Ms G “complained of tenderness and pain in her scalp, left neck, back, right chest wall, the upper part of her right foot and her left upper arm. No injury was visible on examination of these areas. Tenderness is a subjective sensation of pain on touching. When tenderness caused by physical trauma is present, an injury may or may not be visible.”[15]
[15] HB 263
20.The Tribunal finds that after the crimes were committed Ms G continued to feel threatened by the applicant, and steps were taken to put an AVO in place on 3 March 2017 (over 4 months after the offending occurred) for a period of 2 years.
21.The Tribunal rejects the evidence given by the applicant at the hearing that prior to the commission of the crimes he got into an argument with Ms G about family. He said she used “vulgar” words about his family and she was swearing at him. As a result, he got angry and he slapped her on the face a couple of times and she was slapping him back. She did not try to get away. His nephew did not tell him to stop and no one was crying. He said he slapped her a couple of times and she slapped him back. There was nothing else and this lasted 20 to 30 seconds.
LEGISLATIVE FRAMEWORK
22.Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. The relevant parts of that section are as follows:
a)Section 501(1) states 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;
b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and
c)Section 501(7)(c) states that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
23.It is not in dispute, and the Tribunal so finds, that the applicant does not pass the character test under s 501 of the Act, as he has a substantial criminal record as defined by s 501(7)(c).[16]
[16] HB 226
24.Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and such person or body must comply with any direction given by the Minister (s 499(2A)). In this case, Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction), dated 7 June 2024, is applicable.
ISSUE
As the applicant does not pass the character test, the issue to be determined by the Tribunal is whether the refusal decision should be affirmed or set aside. The issue must be determined taking into account the relevant considerations in the Direction.
26.The Tribunal must stand in the shoes of the original decision‑maker but consider all of the available evidence at the time of the Tribunal’s decision.[17]
[17] Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80
CONSIDERATION
Paragraph 5.2 of the Direction sets out several principles that must inform the decision‑maker’s application of the primary and other considerations set out in the direction. Those principles are:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerationsmay be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[18]
28.Paragraph 7 of the Direction requires the Tribunal to give appropriate weight to information and evidence from independent and authoritative sources. It requires the Tribunal to give greater weight generally to the protection of the Australian community over the other primary considerations and it requires the Tribunal to give greater weight generally to primary considerations over other considerations.
[18] HB 161-162
Paragraph 8 of the Direction sets out the five primary considerations that the Tribunal must take into account, and they are:
1.protection of the Australian community from criminal or other serious conduct;
2.whether the conduct engaged in constituted family violence;
3.the strength, nature and duration of ties to Australia;
4.the best interests of minor children in Australia; and
5.expectations of the Australian community.
Paragraph 9 of the Direction sets out three other considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity and other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
In determining the weight to be allocated to primary consideration 1, paragraph 8.1(2) of the Direction requires decision‑makers to consider; 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 and engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 8.1.1(1)(a) of the Direction sets out the three categories of offences which are viewed “very seriously” by the Australian Government and the Australian community. They are:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
Considering the applicant’s offending history and the findings made by the Tribunal in relation to that, the Tribunal further finds that the applicant committed crimes of a violent nature against a woman in the presence of children including acts of family violence. Accordingly, these acts are viewed as very serious.
There is no direct evidence in relation to the impact of the offending on the victim or her family (paragraph 8.1.1 (1)(d)). However, in his statements the applicant acknowledges that the impact of his behaviour “may have been particularly harmful to [Ms G]”[19] and he says he sincerely regrets the hurt that he caused Ms G and her children both at the time and in the years following as a result of his actions.[20]
[19] HB 69
[20] HB 66
The Tribunal accepts and finds that there is no relevant evidence with respect to the balance of the matters referred to in paragraph 8.1.1. There is no evidence that:
· the applicant’s crimes were committed against vulnerable members of the community (such as the elderly and the disabled) as referred to in paragraph 8.1.1(1)(b)(ii).
· the applicant has committed any crimes whilst he was in immigration detention. In the Protection (Class XA) Visa Assessment, there is some reference to allegations that whilst in immigration detention he was involved in several contraband incidents, which relate to possession of a mobile phone, unidentified medication/drug, cash and pornography.[21] There is no direct evidence about this and the Tribunal does not view them as serious nor take them into account in its findings: paragraph 8.1.1(1)(b)(iv).
· the applicant has been involved in any frequent offending or that there is any trend of increasing seriousness in offending: paragraph 8.1.1(1)(e).
· there is a discernible “cumulative effect” other than the obvious harm to Ms G and her children and the waste of public money and resources (police, courts, the Tribunal): paragraph 8.1.1(1)(f).
· the applicant provided false or misleading information to the Department: paragraph 8.1.1 (1)(g).
· the applicant has reoffended after being formally warned, or since otherwise been made aware, in writing, about the consequences of further offending to their migration status: paragraph 8.1.1 (1)(h).
[21] HB 219
The Tribunal applies neutral weight to the matters referred to at paragraph 8.1.1(1)(b). The Tribunal accepts that the applicant has made statements that go some way towards acknowledging the impact of his offending on Ms G and her children but overall, the Tribunal considers the applicant’s acts of family violence impacting Ms G and her children are very serious and on balance this factor weighs moderately against the revocation of the refusal decision.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction states:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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 on the risk of the non‑citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This paragraph requires an assessment of the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct. It also requires an assessment of the risk or likelihood of the applicant reoffending. There is no statutory constraint on the way that this risk is assessed save that whatever is taken into account must be logical and rational.[22]
[22] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]
The applicant accepts that any further offending would have the potential to cause physical or psychological injury to members of the Australian community. However, in assessing the likelihood of the applicant engaging in further criminal or serious conduct, the applicant submits that the Tribunal should take the following factors into account:
·the applicant’s expressions of remorse and insight into his offending;
·the fact that the offending occurred in 2016, more than eight years ago;
·the fact that the offending occurred shortly after the death of the applicant’s brother, at a time of considerable stress and trauma;
·the steps the applicant has taken, including the completion of a men’s group which focused on anger management and gender equality;
·the evidence as to the applicant’s good character, contained in the various character references;
·the fact that the applicant has not reoffended.[23]
[23] HB 228
In the applicant’s statutory declaration made on 4 October 2024 he states:
I once again wish to convey my profound remorse and regret for my actions that resulted in me being convicted of assault occasioning actual bodily harm and stalking and intimidation with intent to cause fear of physical or mental harm. I sincerely regret the hurt that I caused my sister-in-law and her children both at the time and in the years following as a result of my actions. I accept full responsibility and understand that this is something that will stay with me for the rest of my life.
As I have noted in the past, at the time of my offending I was in a very difficult place. My brother had been killed and I was struggling mentally with the trauma of his loss. This however is no excuse for my actions, especially as my sister-in-law was experiencing the very same feelings of loss and grief at that time.
I note that I successfully completed my 12-month good behaviour bond and also completed an anger management course.[24]
Furthermore, I am not in a relationship at the moment. I have close friends in Australia who have been hugely supportive of me over the past few years, particularly since being released from detention into the community. I note that I have provided some letters of support from these friends which I continue to rely on.[25]
[25] HB 66-67
The applicant was assessed by Ms D Bostock (forensic psychologist) on 3 December 2024. She provided a report dated 13 December 2024.[26] The assessment took place over the telephone with the assistance of an interpreter who was on a different telephone. The assessment was booked as a face‑to‑face appointment, but for various reasons that did not occur. Ms Bostock accepted that there were limitations associated with the assessment, including difficulties with the quality of the telephone call which at times affected comprehension of all parties and the use of an interpreter which can complicate psychological assessments in that mental health terminology and practices can be misinterpreted or misunderstood due to cultural and/or linguistic differences.[27]
[26] HB 319-338
[27] HB 321
Ms Bostock describes “risk assessment” as a process by which the likelihood of a person committing further offences is determined. She says this determination is typically based on the evaluation and consideration of two types of risks – historical (static) factors and dynamic factors. Static risk factors are unlikely to change (e.g. age at first offence), whereas dynamic risk factors are typically considered areas of treatment need (e.g. poor problem solving skills, use of drugs, etc.).[28]
[28] HB 331
The applicant’s risk of general offending was assessed using the Level of Service/Case Management Inventory (LS/CMI) and his risk of male to female intimate partner violence, was assessed using the Ontario Domestic Assault Risk Assessment (ODARA).
Ms Bostock states that the applicant’s overall score on the LS/CMI was 9, which placed him in the low risk of reoffending. This score is lower than the scores of 71% of male offenders in the North American normative sample who are living in the community (e.g. on probation or parole). This means that out of 100 community-based male offenders, 29 would have a lower risk than the applicant.[29]
[29] HB 333
In relation to the ODARA, there were 3 items in which the availability and possibly accuracy of the information provided was unclear or discrepant with the information provided by the applicant. These items were: whether the applicant threatened to kill at the index assault, whether Ms G was confined at the index assault and whether Ms G was pregnant at the time. If the applicant did confine and threaten to kill Ms G, and she was pregnant at the time, the applicant’s score would be 7, which means 74% of men with this score would commit another assault against a partner within an average of about 5 years.[30]
[30] HB 333
If the applicant did not confine or threaten to kill Ms G, and she was not pregnant at the time, his score would be 4. Approximately 39% of men with this score will commit another assault against their partner within 5 years.[31]
[31] HB 334
At the hearing, Ms Bostock was asked to provide an ODARA score assuming that the applicant did confine and threaten to kill Ms G, but she was not pregnant at the time. Based on this, his score would be 6. Approximately 53% of men with this score will commit another assault against their partner within 5 years.
Ms Bostock said that the applicant described suffering symptoms consistent with PTSD at the time of his offending in October 2016[32] but her assessment of his current mental health failed to identify any current diagnoses or specific areas of mental health difficulties. Ms Bostock suspected that the applicant had difficulties with comprehension and the reason for this may be linguistic or it may be due to cognitive deficits. No formal finding was made in relation to this. Ms Bostock admits that there were limitations regarding the quality of the available information which made it difficult to make a sound determination of the applicant’s risk of domestic violence reoffending.[33]
[32] HB 334
[33] HB 336
Any repeat of the applicant’s offending could result in devastating consequences. Any further acts of family violence or violence against women could result in serious injury, psychological harm or worse.
Based on the expert evidence of Ms Bostock, the Tribunal finds that the ODARA tool is more appropriate for estimating the risk of male to female intimate partner violence recidivism. This is the risk that is most applicable to the applicant. The Tribunal finds that at the time of offending the applicant did confine and threaten to kill Ms G, but she was not pregnant at the time. According to Ms Bostock this means that there is a 53% risk (slightly more than a 1 in 2 chance) of the applicant committing another assault against a partner within an average of about 5 years. The Tribunal accepts that over 5 years have elapsed since the applicant’s offending occurred. The applicant was in immigration detention from 2016 until July 2023. Since his release he has not been in a relationship. Accordingly, the applicant has not been placed in a situation whereby the risk could crystallise.
The evidence in relation to the extent of the applicant’s rehabilitation is uncertain. In the applicant’s most recent statement dated 23 December 2024 he does say:
·I understand there is no tolerance for violence in Australia.
·I feel embarrassed about the offending.
·I can control my emotions now and I do not ever want to see any incidents happen again.
·Whilst in immigration detention I attended all the programs I was offered including English classes and reading skills. I also attended classes focused on anger management.
·I had not heard about family violence because it was not an important thing in Myanmar. I only have learned about gender equality between men and women in Australia. I now understand it to be very important that in Australia men and women are treated equally. I fully accept violence should not happen to anyone.
·When I was in immigration detention I do not remember being told by anyone that I should attend programs/courses in relation to family violence.
·I regularly attend community events at a Rohingya community centre. I enjoy helping people and I want to do more volunteer work with my community. At community events I help with cooking and handy work to help with building or fixing things for the community.
·I recently had a friend help me to get some experience working in construction. It was not a paid job.
·I have good friends who help me with food and accommodation. They help me look for a job.
·I like to play sports with friends.
·I tried to apply to study an excavation course while I was in detention but my caseworker told me I could not do such a course. I would consider studying an excavation course in the future and my caseworker is looking into how I can do this.
·If I was on a protection visa, I would not have any limitations on where I can work and I can travel to Melbourne to see my friends who are working in the construction industry.
·I have asked my friends for a job in Sydney but they told me it would be very difficult for me to seek work on a bridging visa. I think it would be easier for me to get a job if I was on a protection visa and I would also consider a job in construction in Sydney.
·In terms of my plan for a future relationship, I would like to eventually start my own family, but I am not planning for it.
·My social worker is helping to link me with more support for men’s referral services. I am interested to do these programs because I will learn about my safety and the safety of others, also learn more skills on what I can do and cannot do in Australia.
At the hearing, the applicant was not an impressive witness. The Tribunal accepts that there could be a variety of reasons for this. However, his evidence in relation to the circumstances surrounding his offending was not credible and has not been accepted by the Tribunal. When he was asked “what are you sorry about?”, he replied he was sorry about the slapping, it should not happen, especially to women. He accepted that his victim suffered and said it should not have happened and he sincerely apologised. He said he was ashamed and embarrassed about what had happened and said it will not happen anymore and what happened was totally bad for everyone. He said that from now on he can make sure that it does not happen again and promised it was not going to happen again.
When he was asked about why he initially pleaded not guilty to the charges against him, he said it was because he “got scared.” When he was asked about why he changed his plea to guilty after Ms G gave her evidence, he said that his lawyer explained the charges and asked him if he could plead guilty, so he did. He did not know anything about the court. He said that all he could remember was that because of the argument he had with Ms G, 2 slaps happened and he could not recall anything more. He said he could not recall the circumstances giving rise to the Apprehended Domestic Violence Order (AVO) made against him on 3 March 2017,[34] but he was aware that it was in place. He denied there was any argument about money. He denied that he threatened the safety of Ms G’s mother.
[34] HB 49-50
The applicant was also asked about his understanding of the term “domestic violence.” He said, ‘it was threatening someone’; ‘destroying someone’s life’; ‘it should not happen’; ‘it’s a very dirty thing’; ‘human beings should not do domestic violence.’ He said that Ms G ‘suffered a lot’ and that ‘for 9 years I have suffered a lot’. He said that domestic violence is also ‘in the home and outside the home’ and it can ‘make someone lose money.’
The applicant gave evidence that in July 2023 he was released from immigration detention and placed in community detention. At that time he had no working rights. In November 2024 he obtained a BVR, he accepted that he could obtain work on that visa and he was hoping that his caseworker would help him do an excavation course so that he could obtain work.
In the Tribunal’s opinion the applicant presents with at least a moderate risk of re-offending, a 53% chance. Further, the Tribunal is highly uncertain about the extent of the applicant’s rehabilitation. The applicant has a limited understanding of what domestic violence means, he has not accepted responsibility for the severe nature of his offending and in his oral evidence at the hearing, he was insistent that his offending only involved slapping Ms G, that she provoked him by saying vulgar words and bad things about his family and she was slapping him back.
The applicant’s future conduct towards a female in an intimate partner relationship remains untested. He does not have a good understanding about domestic violence and does not accept responsibility with respect to his involvement in very serious domestic violence.
Any reoffending by the applicant may result in serious physical and/or psychological harm to any victim. The applicant’s risk of recidivism is at least moderate. Despite the words in the applicant’s statements, the evidence of his actual rehabilitation is limited and the Tribunal remains guarded about this.
On behalf of the applicant, it was submitted that regardless of the result of the visa application, the applicant will remain in the community and will do so indefinitely. Therefore, the only apparent consequence of the refusal of the visa is that the applicant will remain in the community on a BVR rather than on the visa. Thus, the principle in paragraph 8.1(1) ‘that entering or remaining in Australia is a privilege’ does not apply. It was further submitted that this means the focus of the Tribunal is on the protection of the Australian community in circumstances where the applicant will remain in the community. In other words, will community protection be better served by the applicant remaining in the community on the visa or on a BVR?[35]
[35] HB 229
The applicant referred the Tribunal to the case of DLZZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3922 (DLZZ). In that case Deputy President Boyle considered Direction 99, which has been replaced by the Direction. At [40] he said:
The considerations in Direction 99 are premised on the decision to be made by the Tribunal determining “whether non-citizens who are of character concern are allowed to enter and/or remain in Australia”…The decision in NZYQ …and the subsequent grant of visas to non‑citizens coming within the apparent scope of that decision change the fundamental assumption upon which Direction 99 operates. In the present case, as things presently stand, the Applicant will stay in the Australian community irrespective of the decision that I make. The only difference that the decision that I make will have will be as to the conditions under which the Applicant remains in the Australian community. That fact renders the majority the considerations under Direction 99, if not irrelevant, certainly of a different complexion and/or importance.
The applicant submitted that the protection of the Australian community should be a neutral factor. While the community rightly condemns family violence, the applicant’s past offending is not a factor that should weigh in favour of visa refusal by reason of paragraph 8.1, in circumstances where the applicant will remain in the community despite any refusal. There is no evidence that this would serve any purpose other than the punishment or denunciation of the applicant which would be impermissible.[36]
[36] Chu Kheng Lim v Minister for immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at [33]
In the decision of DLZZ Deputy President Boyle also said at [80]:
The fact that the Australian community will be exposed to the Applicant’s behaviour, irrespective of the decision that I make, must mean, as a practical matter, that this consideration has less weight. However, […] I am required to take into account the mandatory considerations under Direction 99 and to give each consideration appropriate weight.
The Tribunal accepts that a revocation of the refusal decision means that the applicant would be granted a protection visa and that an affirmation of the refusal decision means that the applicant would remain on a BVR. Whilst the applicant will remain in the community irrespective of the Tribunal’s decision, the visas are different and those differences should not impact the Tribunal’s decision. The Tribunal agrees with the applicant’s submissions that:
· the fact that the applicant will remain in community regardless of the Tribunal’s decision is a factor that needs to be taken into account.[37]
· the Tribunal should not be concerned about the applicant holding any particular type of visa.[38]
[37] HB 229
[38] HB 230
The Tribunal is required to take into account the mandatory considerations under the Direction and give each consideration appropriate weight. Provided that the proper scope and limits of s 501 (and the Direction) are applied, then the refusal decision cannot be characterised as punishment or denunciation.[39]
[39] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
In the case of XKTK, the applicant submitted that because “the applicant would remain in the community irrespective of whether his Safe Haven Visa was cancelled…there could be no rational basis for the Minister to conclude that his findings on the community protection consideration could weigh in favour of cancellation of the applicant’s Safe Haven Visa.”[40] That submission was not accepted by Halley J, who relied upon the decision in JNMQ vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1375 (JNMQ). He found that in JNMQ, Jackman J correctly identified that “the question for the Minister’s consideration when assessing the protection of the Australian community was not simply whether the applicant would be removed from the community upon the refusal of the visa.”[41]
[40] XKTK at [30]
[41] XKTK at [45] referring to JNMQ at [27]
The protection of the Australian community needs to be considered in in the context of the Direction. The Tribunal appreciates that if the refusal decision is not revoked then at least for the foreseeable future, the applicant will remain in the community on a different visa and subject to the imposition of conditions. Further the Tribunal appreciates that the applicant’s ability to apply for alternative visas will be significantly reduced.
The Tribunal notes that in the report of Ms Bostock she opined that if the applicant had a protection visa rather than a BVR this would “logically lower his risk as he would be able to travel to see his family thereby enhancing his social and familial support network; he would be unrestricted in the type of work he can undertake therefore addressing employment and financial stability. He would be entitled to greater social security payments if needed which would reduce his level of stress and provide him with greater financial stability.”[42] Ms Bostock also opined that the applicant’s risk of reoffending would be mitigated by attending a program for male perpetrators of domestic violence and having mental health support.[43]
[42] HB 337
[43] HB 337
There is evidence that the applicant is in regular contact with his family and he has a good social support network in Australia. There is no evidence that the applicant is restricted in his ability to undertake construction work, which he has expressed an interest in performing. If he obtains work in construction his employment and financial stability will be addressed. The evidence is that referrals have been made for him to attend ‘No to Violence Brief Intervention Service’ (BIS) and STARRTS programs.[44] The Tribunal rejects the submission that community protection would be better served by the applicant remaining in the community on the visa rather than on a BVR.
[44] HB 363
As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 1, particularly the protection of the Australian community, the very serious nature of the applicant’s conduct and the risk to the Australian community should the applicant re-offend, the Tribunal finds the evidence weighs moderately against the Tribunal revoking the refusal decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non‑citizen's migration status, should the non‑citizen engage in further acts of family violence.
The Tribunal has already discussed the family violence committed by the applicant and the Tribunal has found that the family violence was “savage in nature”, it involved hitting, kicking, pulling of hair, the production of a knife, confinement, threats to Ms G’s life and it was committed in the presence of Ms G’s children.
The Direction defines family violence to mean:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
A family member “includes a person who has, or has had, an intimate personal relationship with the relevant person.”
In this case the applicant has been convicted of two offences that involve family violence and there is information or evidence that an AVO was taken out against the applicant for the protection of Ms G on 3 March 2017, four months after the offences occurred on 4 October 2016.
The Tribunal accepts that the family violence occurred on a single date more than 8 years ago and there is no trend of increasing seriousness and that there is no cumulative effect of repeated acts of family violence. There is no evidence that the applicant has reoffended since being formally warned about the consequences of further acts of family violence after the AVO was made on 3 March 2017. For the reasons outlined above the Tribunal has formed the view that the evidence in relation to the extent of the applicant’s actual rehabilitation is limited and uncertain and the Tribunal remains guarded about this. In the applicant’s written statements contained in the hearing book he appears to accept responsibility for his family violence offending and he appears to understand the impact of his behaviour on Ms G and her children who witnessed the family violence. However, this was not apparent from the applicant’s oral evidence. In his evidence he was in insistent that he only slapped Ms G a couple of times on her face. He also engaged in victim blaming by stating that he got angry because Ms G used vulgar words about his family, she was swearing and further that she was slapping him back.
In relation to the efforts the applicant has made to address factors which contributed to his conduct, the Tribunal notes that whilst in immigration detention in 2019 he participated in a men’s group and demonstrated an understanding of anger management and promoting gender equality. In the applicant’s statement dated 23 December 2024[45] he says he recalls attending classes focused on anger management and he learned ways to stop his anger ‘like breathing in and controlling anger behaviour to control a situation’. Whilst in immigration detention there were occasions when people came into his personal space, but he avoided contact with them: ‘I would walk away and did not want to get into trouble.’ He says that he only ‘learned about gender equality between men and women in Australia.’ He says:
I now understand it to be very important that in Australia men and women are treated equally. I fully accept violence should not happen to anyone.[46]
The applicant has not attended any programs or courses that specifically relate to family violence. He says he has spoken to a social worker who is helping to link him with ‘more supports like STARTTS and Men’s Referral Services.’ Referrals were made in December 2024. The applicant states:
I am interested to do these programs because I will learn about my safety and the safety of others, also learn more skills on what I can do and cannot do in Australia.[47]
[45] HB 314-318
[46] HB 316
[47] HB 318
It was clear from the applicant’s oral evidence at the hearing that he has a limited understanding of what family violence means. The Tribunal acknowledges that at the time that the offending occurred the applicant’s mental health was poor, which was linked to his brother being killed. There are a number of statements from the applicant’s friends that note his poor mental health at the time. An assessment of the applicant’s current mental health conducted by Ms Bostock failed to identify any current diagnoses or specific areas of mental health difficulties.[48]
[48] HB 336
The Tribunal finds that the family violence engaged in by the applicant was very serious and he has not engaged in any rehabilitation that is specific to family violence which addresses all the factors which contributed to his conduct. The applicant’s oral evidence left the Tribunal in doubt as to the extent to which the applicant accepts responsibility for and understands the reasons for his family violence conduct. The fact that applicant’s offending is not as serious as others that may come before the Tribunal is not relevant to the applicant’s objective very serious offending.
The applicant submits that primary consideration 2, relates to the privilege of “entering or remaining” in Australia and because the applicant will remain in Australia regardless of the Tribunal’s decision, it does not apply to someone in the applicant’s position. Accordingly primary consideration 2 should be a neutral factor.[49] A similar submission was raised in relation to primary consideration 1, relating to the protection of the Australian community. As stated in relation to that consideration the question for the decision-maker when assessing primary consideration 2, relating to family violence is not whether the applicant would be removed from the community upon refusal of the visa. The fact that the applicant will remain in the community on a different visa does not render primary consideration 2 non-applicable to the applicant. The factors raised in paragraph 8.2 must still be considered by the Tribunal and appropriate weight must be given to them.
[49] HB 230
As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 2, particularly the objective serious nature of the applicant’s family violence and the doubts the Tribunal has about the extent of the applicant’s rehabilitation, the Tribunal finds the evidence weighs moderately against the Tribunal revoking the refusal decision.
PRIMARY CONSIDERATION 3: THE APPLICANT’S TIES TO AUSTRALIA
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's 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.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The evidence is that the applicant was born in 1987 in Burma (now Myanmar) and comes from a family of eight comprising his mother, father, three brothers and four sisters. In 2012, when he was 25 years of age, he arrived in Australia. He had a brother who also was residing in Australia until he was killed in 2016. His mother and father and two brothers and two sisters all reside in Bangladesh. He has a brother and a sister residing in Saudi Arabia. He has no contact with his sister-in-law and her three children. He has no other family members residing in Australia.
The applicant provided several statements or references from friends he has made whilst living in Australia. It is unclear from those statements whether they are Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. There is no evidence that any of these people would be adversely impacted if the refusal decision was affirmed by the Tribunal.
The Tribunal notes that the applicant did not arrive in Australia as a young child and his offending occurred four years after arriving in Australia. Further, the applicant gave evidence that the only paid employment he has had since arriving in Australia was for two weeks when he worked in a chicken factory which he had to leave because he got sick. In his written statement dated 23 December 2024 the applicant states that he currently resides in Lakemba, where his friends and the Rohingya community are concentrated. He participates in community gatherings and likes to play sports with his friends. A friend helped him to get some hands-on experience working in construction and he hopes he can work in Melbourne or Sydney with his friends who are working in the construction industry.
As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 3, the Tribunal finds whilst the applicant has made some good friends whilst residing in Australia, his immediate family is not in Australia and the evidence weighs moderately against the Tribunal revoking the refusal decision.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN
The applicant submits and the Tribunal finds that there are no minor children in Australia affected by the refusal decision. The applicant has no contact with his sister-in-law’s children. Accordingly, consideration 4 is not relevant to the applicant’s case and is given neutral weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
This consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction also states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community expects the Government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence or commission of serious crimes against women.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a refusal decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Tribunal has found the applicant has committed offences acts of family violence and serious crimes against a woman, which fall within paragraph 8.5(2)(a) and (c) of the Direction. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction.[50] However, the Tribunal must determine what weight is to be attached to the expectations set out in the Direction.
[50] See FYBR v Minister for Home Affairs [2019] FCAFC 185
In weighing this consideration, the Tribunal is guided by the principles set out in paragraph 5.2 of the Direction. The applicant arrived in Australia when he was an adult (25 years of age). Four years after he arrived, he engaged in serious family violence offending, which raises serious character concerns as referred to in paragraph 8.5(2). The Tribunal has found that there is at least a moderate risk of the applicant reoffending. His risk of reoffending has not been tested because the applicant has not spent a lot of time in the community and has not had an intimate partner relationship since the offending occurred. In such circumstances, the Tribunal finds that the community’s tolerance for the applicant’s offending is significantly diminished and considers the applicant’s visa to be refused.
In relation to community expectations, the applicant submits that paragraph 8.5(2) should be read in light of the overall objective and principles of the Direction which relate to the entry and presence of non-citizens. Paragraph 8.5(2) is not concerned with the refusal of the visa in the abstract, but rather with the refusal of visas in the context of the removal or exclusion of a non-citizen from Australia. Thus, in circumstances where the applicant will remain in the community irrespective of whether the visa is refused, paragraph 8.5(2) should be given no, or alternatively very slight weight in favour of refusal.
The Tribunal recognises that as a result of NZYQ, the legal consequences of the refusal decision are that the applicant will remain in the Australian community, at least for the foreseeable future. However, that does not mean that consideration should not be given to all of the factors in paragraph 8.5. Further, whether the applicant will be removed from the community upon the refusal of the visa is not a factor that is specifically referred to in primary consideration 5. Paragraph 8.5(4) states:
This consideration is about expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 5, the Tribunal finds that the community’s tolerance for the applicant’s offending is significantly diminished and the evidence weighs heavily against the Tribunal revoking the refusal decision.
OTHER CONSIDERATIONS
Legal consequences of the decision
The applicant is a stateless person, who was born in Myanmar. A protection finding has been made in favour of the applicant. The consequence of this is that the applicant is a person in respect of whom Australia has non-refoulement obligations. This finding means that the applicant will not be removed to Myanmar. Accordingly, his fear of persecution and death as a result of being a Rohingyan Muslim if he returns to Myanmar is not a factor that carries any weight in relation to this matter.
In accordance with s 197(3) of the Act, the protection finding for the applicant means his removal to Myanmar is neither required nor authorised by s 198. A decision to refuse the visa will not result in his removal in breach of Australia’s non-refoulement obligations.[51]
[51] HB 28
The consequences of the refusal decision are:
·the applicant could only be removed to a third country and there is presently no prospect of this. Therefore, he would not be subject to indefinite detention (see NXYQ).
·the applicant will continue to reside in the community on the BVR issued to him on 13 November 2024.
·There will be significant restrictions on the applicant’s ability to apply for another visa. Under s 48A of the Act, he would not be able to apply for another protection visa while in the migration zone, unless the Minister thinks that it is in the public interest to lift the bar under s 48B. Further, an application for any visa other than a protection visa would be subject to s 501E, which means that without leaving the migration zone, he would not be able to apply for any visa other than a Bridging Visa R (Class WR) as prescribed by 2.12AA of the Migration Regulations1994 (Cth) (the Regulations). Such visa could only be applied for in response to an invitation. The likelihood of an invitation is unknown.
The applicant’s BVR could cease in circumstances specified in clause 070.511(c) of the Regulations, Schedule 2, subclass 070, namely:
i.when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, stating that the Minister is satisfied that the holders removal from Australia is reasonably practicable;
ii.when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, stating that the holder has breached a condition to which the visa is subject;
iii.when the Minister grants the holder another bridging R (Class WR) visa under regulation 2.25AB.
On 5 December 2024, the Migration Amendment Act2024 (Cth) (the Amendment Act) came into operation. In summary, s 76AAA of the Amendment Act provides for a person’s BVR to cease if:
·that person has permission to enter and reside in a foreign country;
·that foreign country is a party to third country reception arrangements with Australia; and
·the person:
o does not have a protection visa on foot that has not been finally determined; or
o the person cannot be removed to that country because of a protection finding in relation to that country; or
o the person is under 18.
This means that where a protection finding has been made in respect of a person for a particular country, and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country. Other provisions in the Amendment Act require the person to cooperate with steps for their removal to a foreign country and the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (which came into operation on 4 December 2024) creates a criminal offence if the person does not cooperate with these steps.[52]
[52] will (VRRQ) at [135]
At the hearing, counsel for both parties submitted that they were aware of the new legislation referred to above but made no specific submissions in relation to it on the basis that any submissions would be speculative in nature.
As at the date of the hearing the Tribunal is unaware of any arrangements made with third party countries, what countries might be a party to any such arrangements and whether the Minister would seek permission for the applicant to enter and reside in any other country.
Nevertheless, as a result of the new legislation it seems clear that it is the intention of the Australian government to enter into safe third country arrangements and to remove non‑citizens who fail the character test, including BVR holders, such as the applicant. Whilst it is entirely speculative as to when or if the applicant would be removed from Australia to a safe third country, it is now possible that he may be.[53]
[53] VRRQ at [138]
The Tribunal accepts that if the refusal decision is affirmed this will not result in the applicant being indefinitely detained and he will remain in the community as the holder of a BVR. However, it is now possible that he could be removed to a safe third country at some stage in the future and whilst this issue was not specifically addressed in the applicant’s submissions, the Tribunal accepts this uncertainty may have an adverse impact on the applicant.
Another legal consequence for the applicant is that while on a BVR, he is required to comply with the conditions of the visa. As noted above, the conditions include reporting once a day by telephone, obtaining approval for certain types of employment and notifying of any travel (noting that the visa will cease if he departs Australia). In the short‑ to medium‑term, these conditions are not particularly onerous, however, the Tribunal accepts that if they were imposed for a prolonged period that would become onerous.
Further, the Tribunal notes the visa will cease if the applicant departs Australia.[54] Ms Bostock’s report dated 13 December 2024 states that the applicant’s parents are in a refugee camp in Bangladesh, and he speaks to them regularly. He also maintains contact with his siblings. She states that if the applicant was able to travel to see his family, this would enhance his social and familial support network.[55] However, if he is unable to travel and see his family, he will still be able to remain in contact with them.
[54] HB 350
[55] HB 337
Ms Bostock also states that a revocation of the refusal decision would mean that the applicant would be unrestricted in the type of work he can undertake which would address employment and financial stability. There is no evidence that this applicant is precluded from undertaking any work that he seeks to perform in the construction industry as a result of being on a BVR. The evidence is that he has an interest in the construction industry; he would consider studying an excavation course in the future; a friend helped him to get hands‑on experience working in construction; he has friends in Sydney and Melbourne working in the construction industry and he would like to work with them. His friends in Sydney told him that it would be difficult for him to seek work on a BVR, but there is no evidence that this is in fact the case. The applicant told Ms Bostock that he has a friend in Melbourne who works in construction and has encouraged him to complete a course so he can work in excavation. There is no evidence as to why that would not be possible for the applicant to achieve whilst holding a BVR. The applicant gave evidence that the only employment he has had since arriving in Australia was for two weeks at a chicken factory, which he had to leave because he became sick. The Tribunal does accept that the applicant has been in immigration detention for a long period since the time of the offending and that there are some restrictions on the type of employment the applicant can obtain whilst on a BVR.
The applicant’s BVR does permit him to live in the community, it does not specifically prevent him from working (except in certain positions or with certain materials) and he has some access to government benefits. The Tribunal acknowledges that holding a BVR may be a deterrent to some employers and may impact the applicant’s employability.
As a result of the Tribunal’s analysis and evaluation of the evidence that relates to the other consideration of the legal consequences of an affirmation of the refusal decision, including the potential to remove him to a safe third country, the Tribunal finds the evidence weighs moderately in favour of the Tribunal revoking the refusal decision.
Extent of impediments if removed
Paragraph 9.2(1)(a), (b) and (c) identifies the matters the Tribunal must take into account when considering the extent to which the applicant would face any impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The Tribunal must consider:
·the applicant’s age;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to them in that country.
The applicant has a protection finding in his favour and he cannot be removed to Myanmar. Accordingly, the Tribunal finds this consideration is neutral in respect of Myanmar.
The applicant is 37 years of age and is in good physical health. He is Rohingyan and he has some difficulty communicating in English. Whether he would face substantial language or cultural barriers or social support would depend upon which country the applicant may be removed to. In these circumstances the Tribunal cannot make any finding as to what impediments the applicant may face if he was to be removed to a safe third country. The Tribunal accepts that at a minimum the applicant would face the impediment of a lack of the friends and support he has established whilst residing in Australia and concludes that this factor weighs slightly in favour of the Tribunal revoking the refusal decision.
Impact on Australian business interests
The parties submit and the Tribunal so finds that there is no evidence of any impact on Australian business interests; therefore, this factor is neutral and carries no weight.
CONCLUSION
The applicant does not pass the character test under s 501 of the Act.
The Tribunal makes the following findings concerning the primary considerations in the Direction:
a.protection of the Australian community, taking into account the nature and seriousness of the applicant’s conduct and the risk to the Australian community should he commit further offences, weighs moderately against the revocation of the refusal decision.
b.Family violence committed by the applicant weighs moderately against the revocation of the refusal decision.
c.The strength, nature and duration of ties to Australia weighs moderately against the revocation of the refusal decision.
d.The interests of minor children is not a relevant consideration in this matter.
e.The expectations of the Australian community weighs heavily against the revocation of the refusal decision.
The Tribunal makes the following findings concerning the other considerations in the Direction:
a.the legal consequences of the decision weigh moderately in favour of the revocation of the refusal decision.
b.The extent of impediments if removed weighs slightly in favour of the revocation of the refusal decision.
c.The impact on Australian business interests is not a relevant consideration in this matter.
Pursuant to the Direction, greater weight is given to the protection of the Australian community and to the primary considerations. In weighing the primary and other considerations against one another, the Tribunal considers that although there are countervailing situations which favour revocation of the refusal decision, including the legal consequences and the extent of potential impediments if removed, the primary considerations relating to the protection of the Australian community, family violence and the expectations of the Australian community outweigh those considerations in the applicant’s case.
The Tribunal is not satisfied that the legal consequences and the impediments to the applicant outweigh the primary considerations that weigh in favour of exercising the discretion not to grant a protection visa to the applicant on character grounds.
For these reasons, the Tribunal affirms the decision under review.
Date(s) of hearing: 16 and 17 January 2025 Date final submissions received: 29 January 2025 Solicitors for the Applicant: Legal Aid New South Wales
323 Castlereagh Street
Sydney NSW 2000Solicitors for the Respondent: HWL Ebsworth Lawyers
Level 14, Australia Square
264-278 George Street
Sydney NSW 2000
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