LFFQ and Minister for Immigration and Multicultural Affairs (Migration)
[2024] AATA 3429
•2 September 2024
LFFQ and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3429 (2 September 2024)
Division:GENERAL DIVISION
File Number: 2024/3995
Re:LFFQ
APPLICANT
AndMinister for Immigration and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Kathryn McMillan KC
Date of Decision: 2 September 2024
Date of Reasons: 26 September 2024
Place:Brisbane
.................................[SGD].............................
Deputy President Kathryn McMillan KC
CATCHWORDS
MIGRATION – Application for Bridging E (Class WE) visa – where Applicant does not pass the character test – whether to exercise the discretion to refuse the application – whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending – sexually based offences involving a child – consideration of Ministerial Direction No. 110 – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Brooke and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 389
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Murphy v Minister for Home Affairs [2018] FCA 1924
Tanielu v Minister for immigration and Border Protection [2014] FCAFC 673
Uelese v Minister for Immigration and Border Protection [2015] HCA 15SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Kathryn McMillan KC
26 September 2024INTRODUCTION
The Applicant is a 54-year-old citizen of Bangladesh who came to Australia on a Visitor (Subclass 600) Visa (‘visitor visa’) visa in March 2019.[1] His wife and young daughter remain living in Bangladesh, as does his extended family.[2] He holds a Bachelor of Social Science from the Government of Saadat College.[3] He can read and write English to some extent.[4]
[1] G-Documents, G50, page 537.
[2] Transcript, page 54, lines 37 to 44.
[3] Transcript, page 59, lines 1 to 5; G-Documents, G19, page 280.
[4] Transcript, page 36, lines 20 to 32; G-Documents, G37, page 426.
Shortly after arriving, he applied for a Protection Visa (Subclass XA-866) (‘protection visa’), along with an accompanying Bridging A (Class WA Subclass 010) Visa (‘BVA’).[5] In August 2019, the Department of Home Affairs (‘Department’) granted the BVA.[6] However, in October 2019, a decision was made to cancel that visa after the Department found that its grant decision was based partly, if not wholly, on incorrect information.[7] In January 2020, the Department decided to refuse the Applicant's protection visa application, finding that he was not a person in respect of whom Australia owed protection obligations, and the Applicant applied to the Migration and Refugee Division of this Tribunal (‘MRD’) for a review of that decision.[8] That application is currently pending.[9]
[5] G-Documents, G37, pages 417 to 446; G-Documents, G38, pages 447 to 450.
[6] G-Documents, G50, page 537.
[7] G-Documents, G4, pages 36 to 45.
[8] G-Documents, G39, page 463.
[9] Transcript, page 43 line 40 to page 44 line 6.
On 20 May 2020, the Applicant applied for a Bridging E Visa (‘visa’), and on 24 May 2024, a delegate of the Minister for Immigration and Multicultural Affairs (‘Minister’) decided to refuse to grant the visa.[10] The delegate found the Applicant failed to pass the character test under s 501(6)(e)(i) of the Migration Act 1958 (‘Act’), given that he had been convicted of a sexually based offence against a child in South Korea, and decided to exercise their discretion under s 501(1) of the Act to refuse to grant the Applicant the visa.
[10] G-Documents, G39 pages 452 to 457; G2, pages 14 to 33.
On 18 June 2024, the Applicant applied to this Tribunal for a review of that decision, which is the subject of the present proceedings.[11]
[11] G-Documents, G1, pages 1 to 10.
LEGISLATIVE FRAMEWORK
Section 500(1)(b) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), are the sources of the Tribunal’s jurisdiction to review the refusal decision by a Ministerial delegate. The power to grant a visa rests with the Minister, the Tribunal cannot grant the visa, it can only decide if it is or is not refused under s 501(1).[12]
[12] Section 65 of the Act.
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. Under s 501(6)(e) of the Act, a person will not pass the character test if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child. On 9 February 2010, a South Korean court convicted the Applicant of the offence Rape of, or Commission of Indecent Acts by Compulsion on, Minors under Age of 13, and sentenced him to a term of 18 months imprisonment.[13]
[13] G-Documents, G4, page 36 to 45; G17, page 256; G42, page 480; G46, page 494.
Sections 500(6H)–(J) of the Act preclude the Tribunal from having regard to oral information or documents submitted in support of an Applicant’s case, unless the information is set out in written form and given to the Minister at least two business days prior to the hearing.[14]
[14] Uelese v Minister for Immigration and Border Protection [2015] HCA 15.
Section 500(6L) of the Act requires the Tribunal to decide this application within 84 days of the Applicant being properly notified of the reviewable decision. If this does not occur, the decision is affirmed by operation of law. The 84th day in this matter falls on 3 September 2024, which is three working days after the hearing.
Sections 33(1)(a)–(b) of the AAT Act provide that the procedure of the Tribunal is within the discretion of the Tribunal and, “shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT act] and every other relevant enactment and a proper consideration of the matters before the Tribunal permit.” Section 33(1)(c) of the AAT Act states that, “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
ISSUES TO BE DETERMINED
The determinative issues for the Tribunal are:
(1)whether the Applicant passes the character test for the purposes of s 501 of the Act, as defined in s 501(6); and
(2)if not, whether the discretion in s 501(1) to refuse to grant the Applicant the visa was the correct or preferable decision.
It is apparent that the Applicant does not pass the character test, by reason of his conviction for a sexually based offence involving a child.[15]
[15] See s 501(6)(e) of the Act.
In deciding whether to exercise the discretion in s 501(1) to refuse the visa, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. At the time when the Tribunal decided this application, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’) applied.
The Direction contains nine distinct but inter-related provisions, known as mandatory considerations, which are to be applied in accordance with the guiding principles. The guiding principles in paragraph 5.2 of the Direction are transposed below, as far as they relate to this decision:
(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 considerations may 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.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1)the 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 four Other Considerations which must be taken into account. They are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests
Paragraph 7(2) of the Direction provides that Primary Consideration 1 – the protection of the Australian community from criminal or other serious conduct is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) of the Direction provides that one or more primary considerations may outweigh other primary considerations.
CHRONOLOGY
On 22 March 2019, the Applicant applied for a visitor visa to enter Australia. He indicated on the application form that he intended to stay in Australia between 6 and 16 May 2019 for a "sightseeing and pleasure journey."[16] Relevantly, he made the following character declarations on the application form:
·he had never been charged with any offence currently awaiting legal action;
·he had never been convicted of an offence in any country (including any conviction now removed from his official record);
·he had never been found guilty of a sexually based offence involving a child;
·he had never been deported from any country; and
·he had never had a visa for any country refused or cancelled.[17]
[16] G-Documents, G5, page 46.
[17] G-Documents, G5, pages 56 to 57.
On 18 April 2019, the Department granted the Applicant a visitor visa,[18] and he entered Australia for the first time on 17 May 2019.[19] On his Incoming Passenger Card, the Applicant again declared that he did not have any criminal conviction/s, and that he intended to stay in Australia on holiday for 10 days.[20]
[18] G-Documents, G50, page 537.
[19] G-Documents, G49, page 536.
[20] G-Documents, G11, page 233.
On 29 May 2019, 12 days after his arrival in Australia, the Applicant submitted an application for a protection visa,[21] along with the accompanying application for a BVA on 11 June 2019.[22] In both application forms, the Applicant falsely declared that he had never been convicted of an offence in any country, had never been found guilty of a sexually based offence involving a child, and had never been deported or overstayed his visa in any country.[23]
[21] G-Documents, G37, pages 417 to 446.
[22] G-Documents, G38, pages 447 to 450.
[23] G-Documents, G37, page 441; G38, pages 448 to 449.
On 22 August 2019, the Department granted the Applicant a BVA.[24] However, on 11 October 2019, a decision was made to cancel the visa under s 109 of the Act, after the Department discovered that its decision was based on partly, if not wholly, incorrect information.[25]
[24] G-Documents, G50, page 537.
[25] G-Documents, G4, pages 36 to 45.
In particular, the Department was advised by Interpol Seoul that on 9 February 2010, the Applicant was convicted in a South Korean court of a sexual offence committed against a minor under the age of 13, for which he was sentenced to a term of imprisonment of 18 months. On 21 December 2010, he was then deported from South Korea. [26] It is noted that the only documentary evidence before the Tribunal of the conviction existing is the Departmental correspondence referring to the integrity check and Interpol advice,[27] statements from the Applicant, who concedes that the conviction exists,[28] and the Response to a Notice of Intention to Consider Refusal of his Bridging Visa, which was prepared by his former legal representatives (‘the 2021 Response’).[29] In the hearing, the Applicant again conceded the conviction existed.[30]
[26] G-Documents, G42, page 480; G46, pages 494 to 495.
[27] G-Documents, G4, page 36 to 45; G17, page 256; G42, page 480; G46, page 494.
[28] G-Documents, G12, pages 234 to 235; G13, pages 236 to 238; G14, pages 239 to 242.
[29] G-Documents, G17, pages 252 to 257.
[30] Transcript, page 46, lines 1 to 16.
The Departmental integrity check also suggested that the Applicant allegedly overstayed his visa for approximately six years in South Korea and was refused a B1/B2 (Visitor for Business and Pleasure) Visa to enter the United States on 1 August 2017.[31] In the hearing, the Applicant confirmed that he had been refused visas by the United States, Canada and Japan.[32]
[31] G-Documents, G4, pages 36 to 45; G42, page 481.
[32] Transcript, page 26 lines 3 to 12. G-Documents, G19, page 284.
The record of decision to cancel the Applicant's BVA referred to the Applicant conceding that he had not disclosed his overseas criminal conviction and immigration history to the Department, "to ensure he could travel onshore to Australia and then apply for a Protection (subclass 866) visa."[33] This is consistent with his statutory declaration dated 23 September 2019, in which the Applicant explained that, “When I applied for my Australian visa I refused to tell the truth because I had to make sure that I am getting the visa so that I can apply for my Protection visa here. I had no other option but to lie to the department about my previous visa history, other allegations and suits.”[34]
[33] G-Documents, G4, page 42.
[34] G-Documents, G12, pages 234 to 235.
On 14 January 2020, the Department refused the Applicant’s protection visa application, finding that he was not a person in respect of whom Australia owed protection obligations, as outlined in s 36 of the Act. [35] Consideration of his protection claim, and how the present decision may affect him, will be dealt with later in these reasons.
[35] G-Documents, G46, pages 499 to 500.
On 6 February 2020, the Applicant sought a review of the decision to refuse his protection visa in the MRD.[36] The Applicant confirmed that at the time of the hearing in the present proceedings, this application was still yet to be heard by the MRD.[37]
[36] G-Documents, G39, page 463.
[37] Transcript, page 43, lines 35 to 47.
On 20 May 2020, the Applicant applied for the Bridging E Visa that is the subject of the present Tribunal proceedings. He made the application on the basis that he, "wish to remain lawful while waiting for AAT review of the decision to refuse the application for Protection Visa (Subclass 866)"[38]
[38] G-Documents, G39, pages 452 to 457.
On 17 March 2021, the Department issued the Applicant with a Notice of Intention to Consider Refusal of his visa (‘Notice’), by virtue of him seemingly failing the character test under s 501(6)(e)(i) of the Act, due to his South Korean conviction.[39]
[39] G-Documents, G42, pages 479 to 484.
On 13 July 2021, the Applicant, through the assistance of his representative, responded to the Notice via written submissions and supporting material.[40] The Applicant provided further written submissions and supporting documents on 5 April 2023.[41]
[40] G-Documents, G17, pages 252 to 267.
[41] G-Documents, G16, pages 244 to 251.
On 24 May 2024, a delegate decided to refuse to grant the Applicant the visa.[42] This was on the basis that the delegate found that the Applicant failed to pass the character test under s 501(6)(e)(i) of the Act, given that he had been convicted of a sexually based offence against a child in South Korea, and decided to exercise their discretion under s 501(1) to refuse to grant the Applicant the visa.
[42] G-Documents, G2, pages 14 to 33.
On 11 June 2024, the Applicant was notified of the delegate's decision. He applied for a review of this decision in the Tribunal on 18 June 2024.[43]
[43] G-Documents, G1, pages 1 to 10.
The Hearing
The hearing in this matter took place on 22 and 29 August 2024. The Applicant was self-represented, and the Respondent was represented by Ms Claire Campbell of HWL Ebsworth. The Tribunal received the documentary evidence that is listed in the attached exhibit list, marked “Annexure A”.
With the assistance of a Bengali translator, the Applicant gave oral evidence in the hearing via video link. The Applicant’s oral evidence was, at times, confusing and difficult to understand, despite the best efforts of the translator. The Applicant also called five other witnesses, as outlined in the attached witness schedule marked “Annexure B”. The Applicant’s five witnesses were all people which he had met through religious and community groups, and they all gave evidence via video link, except Mr Rahman, who gave evidence via telephone.
At the outset of the hearing, the Tribunal conveyed:
·the substance of the Direction;
·the procedure of the hearing, including cross-examination, re-examination and the making of submissions;
·the Applicant’s privilege against self-incrimination; and
·that the Tribunal could not consider material from him in support of his application, which he had not served upon the Minister with the two clear business days in advance of the hearing, due to the operation of subsections 500(6H)–(J) of the Act.
to which the Applicant affirmed his understanding.[44]
[44] Transcript, pages 9 to 12.
Ms Campbell also provided a concise opening of the case for the Applicant’s benefit of the relevant law and evidence.[45]
[45] Transcript, pages 12 to 15.
The Applicant was given around one hour to prepare his closing submissions.
Conviction in South Korea
As discussed in previous reasons, the Applicant concedes that his conviction in South Korea for an offence of a sexual nature against a child exists. On the evidence, the facts of the offending are not entirely clear. However, the Applicant consistently denied his culpability for this offence. In his various statutory declarations, and in the 2021 Response, he claimed he was wrongly convicted, and gave the following evidence:
·There was an “unexpected bad incident” which occurred involving two of his coworkers and local Korean youths. A complaint was made to the police. When the police raided his workplace to look for the suspects, they arrested the Applicant instead, to use him as a scapegoat.[46]
·The 10-year-old complainant’s mother “made it into a sexual one.”[47]
·The South Korean authorities fabricated the charge against him because, “they would do anything to have [him] caught and removed from South Korea as [he] was an illegal immigrant.”[48]
·He told the police, as well as the Judge, at his first two court hearings that he did not do what he was accused of. After his second hearing, the prosecutor had a long discussion with him, and he was forced to confess to the crime. He was told if he confessed to the charges, he would soon be able to go home to Bangladesh to see his family, who he had not seen for many months. He then admitted the charge at subsequent court hearings, and so the Judge convicted and imprisoned him.[49]
·He did not have access to a proper defence lawyer or interpreter in the court proceedings, and so was unable to defend himself accordingly.
[46] G-Documents. G13, page 236
[47] G-Documents. G17, page 255
[48] G-Documents. G14, page 241.
[49] G-Documents, G17. page 255 to 256.
It was put to the Applicant in cross-examination that he was given an opportunity to challenge the validity of the conviction in the South Korean criminal justice system, albeit without success. In response, he explained that "nobody actually represented me… I didn’t have any personal prosecutor or solicitor on my behalf.”[50] He later clarified that a “government lawyer” represented him at the appellate level.[51]
[50] Transcript, page 21, lines 31 to 47.
[51] Transcript, page 22, lines 10 to 15.
In this hearing, the Applicant gave evidence that he successfully appealed his sentence, and it was reduced from 18 months to 10 months.[52] In the 2021 Response, this is attributed to “his appeal being reasonable and the prosecutors appeal being not reasonable.” [53]
[52] Transcript, page 21, lines 29 to 34.
[53] G-Documents, G17, page 257.
The Applicant’s claims that the conviction in South Korea was improper, and that he was denied procedural fairness, will be dealt with under Primary Consideration 1.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires 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 Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia 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 given to this Primary Consideration, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the Applicant’s conduct to date; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, decision-makers must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)…
(b)…
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.[54]
[54] The Direction, Paragraph 8.1.1(1).
The Minister contends that the nature and seriousness of the Applicant’s criminal offending and his other conduct weighs heavily in favour of a refusal of his visa, and provides two bases as follows:
(a)the Applicant was convicted of a crime of sexual nature against a child in South Korea on 9 February 2010; and
(b)that the Applicant has, on numerous occasions, provided false or misleading information to the Department.[55]
[55] Exhibit R1, page 5, paragraph 22; transcript, page 90, lines 9 to 28.
The conviction is the issue upon which the Applicant does not pass the character test. In his oral evidence and in his statutory declarations, he mounted what was a collateral attack on that conviction. In HZCP v Minister for Immigration and Border Protection,[56] the Full Federal Court outlines the line of authority for the principle that an administrative tribunal cannot ‘go behind a conviction’.
[56] [2018] FCA 1803.
The majority of the Full Court per McKerracher J (with whom Colvin J agreed with Derrington J dissenting) held:
“As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of ‘another reason’ on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: (Waterside Workers’ Federation of Australia v J W Alexander Ltd; Federal Commissioner of Taxation v Munro; Brandy v Human Rights and Equal Opportunity Commission; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and Re Woolley; Ex parte Applicants M276/2003 (by their next) friend GS)
The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
The Tribunal’s observation that it could not contradict or go behind a conviction was correct. The Tribunal’s finding that it could not ‘examine the facts upon which the conviction was based’ is less clear because the phrase is ambiguous. On the one hand, it could merely be an extension of the (correct) legal principle just confirmed. On the other, it could be construed as an assertion that the Tribunal could not have regard to the facts as found by the court. In context, it is apparent that the Tribunal had in mind the first interpretation. The appellant’s evidence was centred on assertions that the sentencing judge’s fact-finding was wrong. In any event, the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.”
The central complaints of fabricated evidence and a lack of procedural fairness, discussed earlier in these reasons, are directly relevant. Whilst there is scant detail about the trial, the Applicant conceded in cross-examination that he was able to participate in the legal process through a successful appeal as to sentence.
I therefore adopt the reasoning of the majority of the Full Court as to the collateral attack on his conviction as being impermissible. In any case, even if my view is incorrect as to the attack on the conviction, I conclude the Applicant was not a reliable witness on this issue and generally, and without any corroborating evidence, I do not accept his version of events.
False and misleading statements provided to the Department.
In cross examination, it was put to the Applicant that he had made numerous false declarations in various documents. For instance, in the applications for his visitor visa, protection visa and BVA, submitted to the Department on 22 March 2019, 20 May 2019 and 11 June 2019 respectively, he falsely declared that he had never been convicted of an offence in any country, had never been found guilty of a sexually based offence involving a child and have never been deported or overstayed his visa in any country.[57] He also falsely declared on his Incoming Passenger Card when entering Australia on 17 May 2019 that he did not have any criminal conviction/s and only intended to stay in Australia on holiday for 10 days.[58]
[57] G-Documents, G5, page 46, pages 56 to 57; G37, page 441; G38 pages 448 to 449.
[58] G-Documents, G11, page 233.
As mentioned above, the Department found that the decision to grant the Applicant his visitor visa to first enter Australia was, "at least partly, if not wholly based on incorrect information."[59]
[59] G-Documents, G4, page 42.
The Applicant gave evidence that he provided false and/or misleading information to the Department on numerous instances, including by not disclosing prior criminal offending, to bypass appropriate channels and screening to enter Australia in order to secure a protection visa.
For instance, for the purpose of determining whether to cancel his BVA, the Applicant conceded to the Department that he had "refused to tell the truth” and failed to disclose his overseas criminal convictions and immigration history "so that [he] can apply for [his] protection visa here."[60]
[60] G-Documents, G4, page 43, G12, page 234.
In both oral evidence and in various documents signed by him, the Applicant provided inconsistent explanations as to the falsity of documentation:
·At times he conceded he had been untruthful in his application for a visitor’s visa because he needed to be able to enter Australia and seek a protection visa.[61]
·On other occasions he claims he was unaware of untruthful information being supplied to the Department by legal representatives, migration agents, a community member,[62] a fellow passenger, but merely signed documentation.[63]
·At other times, as an extension of the previous point, he claimed he had not provided information about issues including his conviction and deportations as he had not been asked specific questions to elicit those responses. In his statutory declaration dated 3 August 2020, the Applicant states, "I had no ill intention of hiding my offences in my visa applications…. Every time the agents just requested my signature, while they filled the application by themselves. I was never asked any questions regarding the offences and hence they were not mentioned during the visa applications lodged before."[64]
·Further, he surmised Australia, the United States, Japan and Canada: “these are all digitalised country, so if I give any misleading false information, it is – I cannot hide information, because this – I am – I am an educated person. I know that these are digitalised country and can give – can give information to be traced. So being aware of that, I cannot give any misleading information.”[65]
[61] Transcript, page 27, lines 26 to 41.
[62] Transcript, page 36, lines 12 to 16.
[63] Transcript, pages 23, 28 to 30, and 41, lines 1 to 5.
[64] G-Documents G13, page 237. Transcript, page 34, lines 15 to 25.
[65] Transcript, page 49, lines 19 to 17.
One consistent aspect of his evidence was that all applications, declarations and passenger card were completed with him providing only very limited information – on occasions merely his passport.[66] He asserted that at least two firms of solicitors had only taken his “passport and money” when they prepared his documentation.[67] There was no evidence to support his claims – such as the fellow passenger on the flight to Australia nor the community member who assisted him in his application for a protection visa. Nor is there evidence of the existence of the migration agent who prepared his initial visitor’s visa, noting only his personal details were included on this form and there was no authorised representative.
[66] Transcript, pages 18 and 38.
[67] Transcript, page 41, lines 38 to 40.
The Applicant is an educated businessman with a tertiary education. He reads and writes English to some degree. It strains credulity for him to assert that the numerous misrepresentations in the visa applications, statutory declarations and on the arrival card, could lie at the feet of migration agents, legal representatives, community members and a fellow airline passenger. Even more extraordinary was his claim that a passport, on its own, would be capable of providing detailed information necessary for the compilation of these applications. When challenged in his oral evidence as to the above inconsistencies, his answers varied to adapt to the questions being put – for example, initially the fellow passenger was a member of his community, when asked why he was not called as a witness, the Applicant then claimed he did not know him.[68]
[68] Transcript, page 37, line 26 to page 38, line 41.
I am satisfied that the Applicant is not a witness of reliability. Even with some of the inherent difficulties of translation and video technology, he obfuscated and was selective in his answers, as indicated above, to explain his lack of candour.
The character evidence of his witnesses do not assist in this regard, as none of them were aware of his criminal history nor the refusal of his visa and have known him for up to a maximum of five years in varying degrees of familiarity.
The evidence comfortably establishes the Applicant has:
·lived as an unlawful non-citizen in multiple countries, including in South Korea (allegedly for a period of six years), Singapore and Australia;[69]
·seemingly engaged in forms of paid employment in Australia since his arrival in May 2019, despite having no working rights as a tourist or an unlawful non-citizen for the majority of the time;[70]
·spent time incarcerated in multiple countries, including in South Korea, and, by the Applicant's own account, Singapore;[71]
·was deported from South Korea for criminal activity on 21 December 2010, and denied entry into the United States on 1 August 2017;[72] and
·made claims for the purpose of his protection visa application which the Department found to be invented and fabricated.[73]
[69] G-Documents, G4, page 38; G-Documents, G13, page 237.
[70] G-Documents, G19, page 279.
[71] G-Documents, G4, page 38; G13, pages 236 to 237.
[72] G-Documents, G4, page 38.
[73] G-Documents, G46, pages 496 to 501.
The conviction, being of a sexual nature and in relation to a child is viewed very seriously by Australian authorities and the impact upon victims of such crimes is profound. As to the course of dissembling to the relevant Department, it commenced prior to his entry in 2019 and includes various documents prepared since. It is a prolonged and conscious course of conduct. I note that one aspect of that information was a denial of that conviction. The conviction and the course of the provision of false information are significant factors and weigh heavily against the Applicant.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Regard should be had by decision-makers 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.[74]
[74] Paragraph 8.1.2(1) of the Direction.
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)available 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.[75]
[75] Paragraph 8.1.2(2) of the Direction.
As Tribunal Senior Member Nikolic referred in Brooke[76] at [53]:
“This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour[77] .The notion of risk and its nexus to future possibility were explored by Justice Mortimer, as her Honour then was, in Murphy[78]:
‘That is, part of the Tribunal was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated’.”
[76] Brooke and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 389.
[77] Minister for Immigration and Ethnic Affairs v Guo (1997) 559,574
[78] Murphy v Minister for Home Affairs [2018] FCA 1924; Tanielu v Minister for immigration and Border Protection [2014] FCAFC 673
Likelihood of further criminal or serious conduct- 8.1.2(2)(b)
The Minister contends that:
(a)the Applicant's crime of a sexual nature against a child is very serious, and any likelihood that it may be repeated is unacceptable. The same applies for his repeated intentional acts of providing false and misleading information to the Australian government for his own personal gain; and
(b)the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and psychological harm to members of the Australian community. They will strain resources, compromise security measures and undermine the integrity of legal systems. They may also contribute to public scepticism towards the Department's immigration screening measures and practices.[79]
[79] Exhibit R1, page 6 paragraph 25.
There is no evidence of the commission of any offence similar to the conviction in South Korea, however given the gravity of the offence, it must be viewed as a significant risk unless there are ameliorating factors.
As the Minister, correctly in my view, submits, the Applicant has not taken responsibility or shown remorse for his criminal offending or any other serious conduct to date.[80] Instead, he has shifted blame to others. As outlined in earlier reasons, the Applicant attributes his conviction in South Korea to, amongst other things, alleged corruption within the South Korean government. Nor has he accepted any responsibility for other serious conduct, including overstaying visas issued in Australia and overseas, and being deported from several countries.
[80] Exhibit R1, page 5 paragraph 26(a).
The Applicant, as the Minister correctly submits, has a longstanding pattern of behaviour of providing false information to deceive authorities and exploit immigration systems for personal gain.[81] The Applicant's repeated false declarations to the Department, which were intentionally made to bypass appropriate channels and screening to enter Australia, along with his inconsistent evidence and longstanding status as an unlawful non-citizen in multiple countries, shows a complete disregard for Australia's immigration laws and regulations and a lack of respect for societal norms and ethical standards.
[81] Exhibit R1, page 7, paragraph 26(b).
The Applicant has no family support, noting that his wife, minor daughter, four sisters, three brothers and several other extended family members, all reside in Bangladesh.[82] . A report by a psychologist dated 17 May 2021 refers to the Applicant as having "no support in Australia and is socially isolated…"[83] It however, ought be noted, that he appears to have support within his community and has actively engaged in social activities and volunteer work.
[82] G-Documents, G20, page 303.
[83] G-Documents, G18, page 268.
The Minister also submits the psychological report refers to the Applicant scoring "extremely severe for both depression and anxiety and severe for stress", when he was assessed against the Depression, Anxiety and Stress (DASS 21) scale administered in Bengali on or around 7 April 2021.[84] Despite this, the Applicant has not engaged in any form of psychological counselling or pharmacological intervention to address his mental health issues in or outside of Australia. I am not satisfied that the Applicant has shown any remorse or insight into his offending nor as to the long course of conduct of providing false information. There are almost no protective factors present to prevent any further offending. Any repeat of the offending is so serious that it is unacceptable.
[84] G-Documents, G18, page 268.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
The Australian Government has expressed it is committed to protecting the Australian community from harm as a result of criminal activity. Whilst the visa sought is not of long duration, the seriousness of the offending, and should he commit another similar offence the risk of very serious harm to the Australian community is apparent. When that is overlaid with his false declarations and applications to the relevant Department along with his longstanding status as an unlawful non-citizen in multiple countries, show a complete disregard for Australia's immigration laws. The risk of any repeat of his conduct would be viewed as unacceptable and weighs very heavily against him.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Here, decision-makers should have regard to the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. Paragraph 8.2(2) of the Direction provides that Primary Consideration 2 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.
Paragraph 4(1) of the Direction provides that family violence means 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. For the purposes of the Direction, ‘member of a person’s family’ includes member includes a person who has, or has had, an intimate personal relationship with the relevant person.
In their submissions, the Respondent concedes that there is no information or evidence of family violence in the present case before the Tribunal.[85] This Primary Consideration is therefore not relevant on the facts of this application.
[85] Exhibit R1, page 8, paragraph 29.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Here, decision makers must consider any impact of the decision on the Applicant’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.[86]
[86] Paragraph 8.3(1) of the Direction.
The Direction provides that the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community, taking into consideration:
(a)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to time the Applicant 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.[87]
[87] Paragraph 8.3(2) of the Direction.
The Applicant relied upon:
·A document signed by 84 people as a recommendation of him to the Minister;
·Documents evidencing participation in voluntary work; [88]
·Letters or statements from witnesses in the community, some of which are discussed below; and
·Oral evidence from five of those witnesses.
[88] G -documents, G23 and G24, pages 312-313.
Mr Abdul Ratan, of the BD community hub, has known him since 2019 and provided a letter in support of the Applicant as to his honesty, diligence and willingness to help others. He gave oral evidence in support and was cross-examined.[89]
[89] G -documents, G25, page 314.
Mr Khalil, of the Campbelltown City Council, similarly in his letter wrote of the Applicant’s interpersonal skills, his willingness to assist and his integration into the community. He also gave oral evidence.[90] Mr Kibria provided two letters of support and gave oral evidence of knowing the Applicant since 2020, and him working in the Bangladeshi community shop. He knew nothing of his prior criminal history or why he was refused a visa.[91] Mr Rahman and Mr Alam also gave letters of support and confirmed in oral evidence the Applicant’s involvement in community work since 2019.[92]
[90] G -documents, G26, page 315.
[91] G -documents, G30, pages 323 to 324; Transcript, page 73.
[92] Exhibit A2. G-Documents, G28, page 319.
Mr Khan of the Australian Muslim Welfare Centre Incorporated, attested in his written statement to his knowledge of the Applicant’s enthusiasm, tireless work and integrity.
Imam Tanvir wrote of the Applicant’s attendance at prayers and, to his knowledge, was not involved in any illegal activities.[93] Similar letters of support were forthcoming from Mr Bhuiyan and Mr Chowdury.
[93] G-documents 316
None of them knew anything of the Applicant’s criminal history or the basis for the refusal of his visa.
It is clear the Applicant has been very involved in the Bangladeshi and the Muslim communities. All witnesses in written and/or oral form have very similar information as to his enthusiasm and willingness to volunteer in the community and the lack of any anti-social or illegal activities. I find he has made a positive contribution to the community and formed connections, and this favours his application. This needs to be caveated with none of the witnesses having knowledge of his antecedents relevant to the Tribunal, and I accord it minimal weight.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, decision-makers must make a determination about whether refusal under s 501 is, or is not, in the best interests of a child in Australia who may be affected by the decision.[94]
[94] Paragraph 8.4(1) of the Direction.
The Minister submits that this Primary Consideration is not relevant in the Applicant's case,[95] on the basis that his minor daughter resides in Bangladesh,[96] and he otherwise has no family in Australia.[97] The Applicant has not identified any minor children in Australia who would be affected by the decision.
[95] Exhibit R1, page 8, paragraph 33; Transcript, page 97, lines 6 to 14.
[96] G-Documents, G20, page 299.
[97] G-Documents, G20, page 303.
This Primary Consideration is not relevant on the facts in this application.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[98]
[98] Paragraph 8.4(1) of the Direction.
A visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, if they raise serious character concerns through conduct in Australia or elsewhere, of a specified kind, including commission of serious crimes against women, children or other vulnerable members of the community; in this context, 'serious crimes' include crimes of a violent or sexual nature.[99]
[99] Paragraph 8.4(2) of the Direction.
The Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[100]
[100] Paragraph 8.4(3) of the Direction.
This Primary Consideration is about the expectations of the Australian community, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated in paragraphs 8.5(1) and (2) of the Direction, without independently assessing the community's expectations in the particular case.[101]
[101] Paragraph 8.4(4) of the Direction.
On the evidence and the findings discussed in the earlier reasons of this decision, the Applicant has engaged in conduct in breach of Australian laws, including making false declarations to the Australian Government on numerous occasions. The Applicant has been convicted of a crime of a sexual nature against a child, which is a very serious crime. This Primary Consideration weighs against the issue of such visa.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
This Other Consideration is found in paragraph 9.1 of Direction 110, which relevantly provides:
9.1.2. Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists.
The Applicant has applied unsuccessfully for a protection visa and the review of the refusal is still pending, hence the question of what legal consequences will flow from this decision must be viewed in that light. Whilst he has not explicitly raised non-refoulement, I consider the issue has been raised on his material. I note that the Tribunal is not required to consider non-refoulment in the same detail as in applications related to the grant of a protection visa.
Applicant’s representations including as to risk of harm
The Applicant has made the following protection claims:
·He was born into a politically active family; his father was a leading member of the Bangladesh Nationalist Party (BNP). From his student days, he was involved in the party and was later a regional officeholder.
·There was a period of political turmoil and a rival party gained power, leading to multiple deaths and injuries. It ruled with the support of the armed forces and eventually democracy was restored.
·Nonetheless, members of the BNP have been falsely accused of crimes. A large number of people have simply disappeared, and BNP members have been arrested and some killed.
·He has been harassed by the Rapid Action Battalion and the DB (the undercover police).
·He has been charged with numerous fabricated offences between 2012 and 2018.
·If he returns to Bangladesh, he will be arrested and mistreated due to these charges.
·In an interview for his protection visa in 2020 with a delegate of the Minister, the Applicant raised a new claim triggering his application for asylum: about three months before departing for Australia, he was attacked whilst with his wife and beaten by supporters of a rival party, suffering injuries. [102]
[102] G-Documents, G46, pages 495 to 496
Further, the relevant Bangladesh immigration authorities check and maintain a list, including those who are sought by security authorities. Advice from DFAT did not support his claim was that the immigration authorities and law enforcement are not connected.
In his evidence, the Applicant emphasised the danger posed to him should he return to Bangladesh, because of his political activities. He was clear that if he returned, he would be detained by the authorities.[103] When asked how that evidence sat with his wife and young daughter remaining behind in Bangladesh, he added that they were in hiding because of him. This was not raised in any previous documentation, including his protection visa application. He has not seen them in five years and became tearful describing how much he missed them. He has not expressed any plans to bring them to Australia.
[103] Transcript, pages 42 to 43 and 55
When asked about his brothers’ ability to apparently live and work without the same safety concerns as his immediate family, he explained that, unlike himself, his brothers are not politically active.[104]
[104] Transcript, page 53.
When he was pressed as to how he had entered and departed from Bangladesh a number of times since 2005 or so without apparent difficulties, given there were criminal charges pending against him, he asserted that he had bribed the appropriate authorities to allow him to do so.[105] In an interview related to his protection visa application with a delegate, reference was made to European countries and the United Kingdom, the Applicant had travelled to since 2012, which were signatories to the 1951 Refugee Convention. He could have claimed asylum in those countries if he feared persecution.
[105] Transcript, page 42, lines 36 to 43.
In summary, I do not accept the Applicant’s concerns as he articulated them, based on the contents of the relevant material before me and the findings I have made as to the reliability of the Applicant generally and specifically on the issue of possible harm if he were returned to Bangladesh.
Consequences of the decision
In the absence of a protection finding, affirming the reviewable decision would mean that:
· the Applicant would remain liable to be placed in immigration detention, and removed from Australia as soon as reasonably practicable, and until that time;[106]
· the only foreseeable matters that may delay his removal is current review in the MRD related to the refusal of his protection visa application, and any appeal against the present decision; and
· he would not be able to apply for a substantive visa while in Australia.[107]
[106] Sections 189 and 198 of the Act.
[107] Section 501E of the Act.
If the Tribunal affirms the decision under review, then the Applicant would remain liable to be placed in detention under section 189 of the Act. There is no possibility that he would be removed to Bangladesh if a protection finding were made. The Tribunal accepts that if the visa is refused the Applicant may be placed in immigration detention and the resultant uncertainty for him, whilst his protection visa review is pending and any appeal from this decision. If the Applicant is entitled to any weight under this Other Consideration against exercising the discretion to refuse to grant the visa, it is only marginal.
OTHER CONSIDERATION B: EXTENT OF IMPEDIMENTS IF REMOVED
Decision-makers must consider the extent of any impediments that the Applicant may face if he is removed from Australia to Bangladesh, in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of Bangladesh, taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in that country.[108]
[108] Paragraph 9.2(1) of the Direction.
Age and Health
There is little evidence about the Applicant’s state of health. He is aged 54. The report of the psychologist is dated, being 2021. It is reasonable to assume if he were removed from Australia, there may well be an exacerbation of his mental health issues. There is no evidence as to the availability of professional assistance in Bangladesh, but one of his brothers is a medical practitioner.
Any language or cultural barriers
As the Applicant has lived most of his life in Bangladesh, apart from periods since 2010, when he was imprisoned in South Korea and intermittently travelled to and from the country. He has lived in Australia for the last five years. There would appear to be no language or cultural barriers to his return to that country.
Social, economic and medical support in Bangladesh
In Bangladesh, the Applicant has a wife and five- or six-year-old daughter. He also has four sisters and three brothers in Bangladesh, one of whom is a lawyer, another is a doctor, and the youngest is a defence personnel. [109] He has daily phone contact with his wife and daughter. Whilst he claims they are in hiding, as these reasons make clear, this is the first time he has raised this, although he does contend that they may be in harm’s way if he is returned.[110] He has tertiary qualifications and is the sole breadwinner of his immediate family. In 2005, he became the sole owner of a business which traded in leather goods and electronics, the annual turnover of which was around AU$200,000.[111] In the hearing, he gave evidence that he was forced to shut down the company before he left for Australia, due to his political activities and, “the deteriorated law and order situation”.[112]
[109] G-documents, G20, page 303.
[110] G-documents, G20, page 303.
[111] G-Documents, page 497.
[112] Transcript, page 56, lines 20 to 41.
The Applicant owns several properties in Bangladesh, including a supermarket and a 7-storey building.[113] When he was asked how he had financially supported himself over the last five years, noting that he never held working rights in Australia, he indicated that he still received rental income from Bangladesh, and had undertaken paid work in Australia.
[113] Transcript, page 54.
He also retains significant property holdings from which he has been able to derive income since his arrival in Australia, which indicates that he would be able to financially sustain himself and family if he were returned. This fact of uninterrupted ownership of assets also undermines his credibility as to persecution and the corruption he claims. In contrast to that situation, he has a sporadic work history in Australia due to constraints on his ability to undertake paid employment.
On weighing those issues given his family support, the duration of his time in Australia and his financial resources available in his home country, whilst the Applicant may well suffer some exacerbation of his mental health issues, this Other Consideration does not militate in favour of his application.
OTHER CONSIDERATION C: IMPACT ON AUSTRALIAN BUISNESS INTERESTS
The Direction requires the Tribunal to consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.[114] This Other Consideration is not relevant on the facts of this application.
[114] Paragraph 9.3(1) of the Direction.
CONCLUSION
I am now required to weigh all of the considerations in accordance with the Direction. The Applicant does not pass the character test. In evaluating all of the relevant considerations pursuant to the Ministerial Direction, account must be taken of the risk posed by the conduct for which he was convicted and the conscious disregard for Australian and other countries immigration laws. Those two factors raise significant issues as to character and any repetition, particularly of the former conduct, would result in serious harm to vulnerable young people.
In his case, the risk of reoffending is unacceptable. Protective factors such as remorse or insight in relation to his offending were absent. Notably, he continuously sought to blame a range of people for his predicament. He does not have family support, and as of 2021, was assessed as socially isolated. He also has not sought out any professional assistance.
The above, together with the expectations of the Australian community as articulated expressly in 8.4(1), also weigh very significantly against the Applicant.
In his favour, he has made connections within his local community and volunteered in community activities. I accept that evidence given on his behalf and accorded its some minor weight. As to whether those connections form a protective factor also - none were aware of his offending nor the reason for the refusal of his visa.
The uncertainty of the Applicant’s position, that he may be detained whilst he awaits the determination of his review and the consequent impact upon him, is a factor which I have accorded marginal weight to.
There is a lack of impediments if he were removed. He is from Bangladesh and has lived most of his life there, he will have immediate and extended family in Bangladesh. He has the financial means to support himself. This consideration does not overall favour the Applicant.
The matters expressed in paragraphs 108 to 110 above, cumulatively significantly outweigh the factors which favour the Applicant.
Application of the Direction therefore favours the refusal of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 116 (one-hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Kathryn McMillan KC
.....[SGD].................
Associate
Dated: 26 September 2024
Date of hearing: 22 and 29 August 2024 Applicant:
LFFQ
Self-RepresentedSolicitor for the Respondent Ms Claire Campbell
HWL EbsworthANNEXURE A: EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G
G-Documents (G1 to G52, 576 pages)
R
Various
25 June 2024
R1
Respondent’s Statement of Facts, Issues and Contentions (10 pages)
R
1 August 2024
1 August 2024
A1
Document signed by Sadikur R Khan, entitled ‘Australian Muslim Welfare Center Inc.’ (2 pages)
A
18 August 2024
18 August 2024
A2
Document signed by Syden Rahman, entitled ‘Character Certificate’ (1 page)
A
25 August 2024
25 August 2024
ANNEXURE B: SCHEDULE OF WITNESSES
PARTY
WITNESS
LANGUAGE
TYPE
MODE OF APPEARANCE
A
LFFQ
Bengali
Party
MS Teams
A
Mr Muhammad Gholam Kibria
Bengali
Lay
MS Teams
A
Mr Abdul Khan Ratan
English
Lay
MS Teams
A
Mr Mohammad Kamrul Alam
English
Lay
MS Teams
A
Cr Masud Khalil
English
Lay
MS Teams
A
Mr Syed Mosfiqur Rahman
English
Lay
Phone
0
7
0