KKFD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2022] AATA 2462

KKFD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2462 (21 July 2022)

AppID:KKFD and Minister for Immigration, Citizenship, and Multicultural Affairs

MatterType:  Migration

Division:GENERAL DIVISION

File Number(s):      2022/3775

Re:KKFD

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:21 July 2022

Place:Sydney

The result, in my opinion, taking into account of all of the matters to which I have referred above, is the correct or preferable decision is that the reviewable decision be set aside and the matter remitted to the department with the direction that it is proper for the visa to be granted.

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Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – refusal to grant visa on character grounds – whether the applicant passes the character test – whether there is a risk that the applicant would engage in criminal conduct – Direction No. 90 considered – where risk of reoffending is low – whether Tribunal can look behind facts of offence found in court where conviction is quashed – where applicant is owed protection obligations – where applicant has links to Australian community in church and support groups – decision set aside and remitted.

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW)

Migration Act 1958 (Cth)

CASES

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

21 July 2022

1. The applicant came to Australia from Iran after a period of significant trauma. He lived with his mother and father in his early life. His father abused him sexually. He was placed in an orphanage under the control of the revolutionary guard and found that environment very harsh. From the orphanage he began to work from the age of 12 years, and went to school as well until the age of 15 years.

2. He undertook employment of various kinds. He fled Iran and ultimately came here as a man of 24 years. He spent five years in the community. He was prescribed tramadol by a general practitioner, became addicted, and moved on to other drugs.

3. He briefly associated with a transexual lady, and after about two weeks, he moved in with her in Sydney’s Western suburbs. After a couple of days he was involved in an incident with the lady and her friend. He was arrested and charged with assault before a local court. The magistrate found him guilty, despite a denial by the applicant, including in a record of interview, that he had committed any assault. He gave evidence which was not accepted by the magistrate and so did the alleged victims of the assault, whose evidence was accepted by the magistrate.

4. He appealed to the District Court, and came before Judge Armitage. His appeal was an all grounds appeal at first, but was altered to an appeal on severity in the District Court. Judge Armitage quashed the conviction and, finding the relevant facts to be proved, under s.10 of theCrimes (Sentencing Procedure) Act 1999 (NSW), put him on a good behaviour bond for one year. He described the offence as one-off after five years of good behaviour in this country. He took into account that the applicant’s visa had been cancelled and that he had been put into detention as a result of the conviction by the magistrate.

5. The applicant remained in detention for several more months until 2016, and was then released from detention when the then Minister for Immigration (Mr Dutton) granted him a bridging visa, having lifted the bar for that purpose under s.195A of the Migration Act 1958 (Cth) (the Act).

6. When in detention the applicant was baptised. He became a practising Christian and at the present time he attends church every Sunday and sometimes midweek. I have heard from one of the members of the congregation, and from another lady who also practices as a Christian, in whose house he lived for seven months until January this year. She spoke very well of the applicant and said that he would be welcome to return to her house in the future. The other accommodation where he now lives is shared with others who attend his Narcotics Anonymous (NA) classes.

7. His behaviour since being released from detention has been exemplary.

8. On 22 April 2022 a delegate of the Minister refused a further application made by the applicant for a Safe Haven Enterprise (Class XE) visa finding both that he failed the character test under s.501(6)(d)(i) of the Migration Act 1958 (the Act). The delegate also found that he is owed protection obligations under the Act, and the respondent accepts that finding. The applicant described the prospect of returning to Iran as a “nightmare” and I gathered would not voluntarily return to Iran under any circumstances if, as a consequence of the refusal of his visa, he were placed in detention. Since the applicant is owed protection obligations, s.197C of the Act would bring about the result that his detention might be very prolonged.

9. The applicant regularly attends Narcotics Anonymous meetings, and has been drug-free for one year, one month and 23 days at the time of the hearing in the Tribunal last week.

10. He has also ceased smoking for some elven months at this time.

11. His evidence was given before me frankly, through a Farsi interpreter. When asked whether he recognised the possibility that he might fall off the wagon again, he replied in the affirmative. I gathered that the effort of getting entirely off of drugs was huge.

12. He spoke about the future which he saw for himself, going to TAFE and obtaining qualifications as a carpenter, helping others, and living happily in the community.

13. He has support not only from Narcotics Anonymous, but from his church. His prospects of continuing good behaviour in the community seem very good indeed.

14. The matters to which I must attend are first, whether he passes the character test in s.501(6)(d)(i) of the Act, and if so, consider whether the refusal of the visa for which he applied is consistent with the dictates of good government, after having regard to Direction 90 made under s.499 of the Act.

15. Section 501(6)(d)(i) of the Act provides that a person does not pass the character test if, in the event that the person remained in Australia, there is a risk that the person would engage in criminal conduct in Australia. The section directs attention to the future, and uses the word “risk” in its ordinary sense.

16. The applicant called a forensic psychologist, Dr Bruce Stevens, who diagnosed the applicant by audio-visual means as suffering from major depressive disorder recurrent, moderate and post traumatic stress disorder with mild to moderate symptoms. In his report of 6 June 2022, he said he did not see any particular risk of violence in this assessment. He considered that the risk of future criminal behaviour in the applicant’s case was “low’.

17. It was submitted by Mr Bhutani of counsel who appeared for the applicant that I should find there is no such risk, having heard the whole of the evidence, including from the applicant himself and from persons who are acquainted with him.

18. On the question of the remarks of Judge Armitage, I think I should treat the remarks as to the facts being proved as, in effect, an adoption of the facts as found by the Magistrate to support the conviction which he made. The conviction itself was quashed.

19. I have re-read HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (McKerracher, Derrington and Colvin JJ) (HZCP). In that case a Tribunal dealing with a different test in s.501 of the Act, and with a sentence after conviction of more than 12 months. The decision in HZCP held that the conviction was not a matter which the Tribunal could go behind by making findings inconsistent with the essential facts on the basis of which the applicant was sentenced. The present test for the character test is different as Mr G. Johnson, who appeared for the respondent, submitted.

20. In this matter I have heard from the applicant but not from the alleged victims. I would hesitate to make findings consistent only with the evidence of the applicant on such a matter, even though I found the evidence of the applicant, taken alone, likely to be reliable.

21. In any event, the applicant’s former drug-taking, his diagnosed mental conditions, and the evidence given by Dr Stevens as to the risk of future offending being low, combine to enable me to say that he does not pass the character test in s.501(6)(d)(i).

22. I turn next to Direction 90.

23. Its terms are published and I do not repeat them here, including as to the statement of principles which they contain. I go straight to the (non-exhaustive) list of mandatory considerations in the direction.

24. As to clause 8.1 which enunciates a consideration of protection of the Australian community, I have regard to the findings adopted by Judge Armitage, referred to above. I do not find that any family violence was involved in the matter. Neither of the victims was a member of KKFD’s family. Such relationship as there was between the applicant and the person described as his girlfriend was too new for that purpose. I have considered the recent decision of the Full Court in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 (Farrell, Moshinsky and Burley JJ), and the provisions of s. 5CB of the Act. The circumstances do not suggest to me that the relationship of de facto partner as defined are applicable to such a new relationship. It ended several weeks after it started in any event.

25. The word “women” in the Direction is capable of extending to a person who identifies as a woman at this time.

26. Such violence as was found to have occurred was relatively minor, in the case of each of the victims. The observation of Judge Armitage that the events which led to the charge were one off was true at that time, and is reinforced by the subsequent seven years of good behaviour. In particular, there is no other history of violence against women. Two women who have had extensive dealings with him gave convincing evidence in his favour.

27. There is no other evidence of violence in the case.

28. His faith, his religious instruction, and his hard-won abstinence from drugs indicate that it is very unlikely that he will offend in the future.

29. There are no minor children in Australia.

30. The factor of expectations of the community, which refers to a deemed governmental expectation, counts against the applicant in this matter, and its weight should be measured against any other considerations which are relevant.

31. Protection obligations are owed in respect of the applicant and the effect of s.197C of the Act in the circumstances is that he will not be returned to Iran. The refusal of the visa for which he has applied will mean that he will be detained, perhaps indefinitely. Detention may cause his depression and PTSD to worsen.

32. There is no evidence of any impact on victims.

33. The applicant has ties to his church, and to his fellow NA friends and acquaintances.

34. His past in Iran is very tragic. He told me that during the years he was in the orphanage, he did not see his mother at all. He last saw her about a year before he left Iran. He has had no contact with his abusive father. It was because his mother’s new husband wanted him to go to an orphanage that he was sent there.

35. He has, despite the incident of 2015 and despite his becoming addicted to drugs, turned his life around. His effort was such that the persons who gave evidence on his behalf do not doubt that he will be of good behaviour.

36. The result, in my opinion, taking into account of all of the matters to which I have referred above, is the correct or preferable decision is that the reviewable decision be set aside and the matter remitted to the department with the direction that it is proper for the visa to be granted.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 21 July 2022

Date(s) of hearing:	14 & 15 July 2022
Date final submissions received:	19 July 2022
Counsel for the Applicant:	Mr D Bhutani
Solicitors for the Applicant:	Ms H Gray, NSW LEGAL AID
Counsel for the Respondent:	Mr G Johnson
Solicitors for the Respondent:	Mr F Rush, SPARKE HELMORE