LMYC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 1807

LMYC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1807 (26 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/1381
Re:LMYC
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:26 May 2023
Date of written reasons: 23 June 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for a Bridging E (Class WE) visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
.............[sgnd]...............................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – refusal of Bridging E (Class WE) visa – s 501(1) Migration Act 1958 –applicant does not satisfy the character test – substantial criminal record –– whether to exercise statutory discretion to refuse visa – Direction 99 – trend of increasing seriousness – dishonesty and theft offences – single instance of family violence – offending related to drug dependence – serious consequences to the Australian community if applicant reoffends – applicant now drug-free – risk of reoffending low – expectations of the Australian community count substantially against the applicant – length of time in community under a bridging visa under the control of the responsible Minister – ties to the Australian community – applicant has Australian partner and child – their interests weigh in favour of applicant – current evidence suggests applicant has genuine Christian beliefs –prospect of continuing indefinite detention – applicant has requested Ministerial intervention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 ‒ Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
JD Heydon, Cross on Evidence (LexisNexis Butterworths, 12^th ed, 2020)
Department of Foreign Affairs and Trade, DFAT Country Information Report - Iran, 14 April 2020
REASONS FOR DECISION
Senior Member Dr N A Manetta
23 June 2023

After delivery of my decision with oral reasons on 26 May 2023, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with relatively minor amendments.
[1] These reasons include certain standard paragraphs that I usually insert: see, in particular, [7] and [31].
This is an application by “LMYC”, a person whose identity is subject to a confidentiality requirement and to whom I shall refer in these reasons as “the applicant”. The applicant, who is presently in immigration detention, seeks a review of the decision of the respondent’s delegate dated 2 March 2023. By this decision, the delegate exercised the discretionary power in section 501(1) of the Migration Act 1958 (Cth) (“the Act”) and refused the applicant’s application for a Bridging E (Class WE) visa. Before so acting, the delegate had to be satisfied that the specified jurisdictional threshold in section 501(1) was satisfied; and, if the threshold was satisfied, the delegate had then to decide whether the discretion should be exercised to refuse the visa.
The delegate first found that the applicant had a “substantial criminal record” and that he did not satisfy the so-called “character test” under section 501(6) of the Act. The jurisdictional threshold under section 501(1) was met in these circumstances.
In considering whether to exercise the discretion in section 501(1), the delegate was obliged to apply any direction issued under section 499. The delegate applied Direction no. 90, still in force at the time of his or her decision on 2 March 2023, although it was repealed with effect from the next day. The delegate weighed the various considerations required to be addressed under Direction no. 90 and decided that, on balance, the discretion to refuse the applicant a visa ought to be exercised.
The applicant sought a review of the delegate’s decision in this Tribunal. He conceded that he does not satisfy the character test and that the only question of substance concerns the exercise of the discretion in section 501(1). I agree with that concession.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before it, the Tribunal, like the delegate, must apply any direction issued under section 499 of the Act. As I have indicated, on 3 March 2023, Direction no. 90 ceased operation. Direction no. 99 came into force.[2] I have applied Direction no. 99 as part of my review. Neither party submitted that I should apply Direction no. 90.
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 ‒ Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023). See section 2 for the commencement date.
I note that in exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].
At the hearing, Mr Prince represented the applicant; Mr Ellison, the respondent. I acknowledge their assistance. I make particular mention of Mr Ellison’s measured and balanced advocacy on behalf of the respondent, which well reflected the respondent’s model-litigant obligations.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Act. I now set out the background facts and the reasons for my decision.
BACKGROUND FACTS
The applicant was born overseas on 21 March 1990 and is a citizen of Iran. He arrived in Australia in June 2013 aged 23. He has lived in Australia since that time and for the most part on bridging visas.
Application for a protection visa
I turn immediately to consider two of the applicant’s past visa applications. The applicant applied for a protection visa on 17 January 2017. This application may, or may not, be relevant to my assessment of the applicant’s present-day Christian beliefs, which were the subject of evidence before me. The application was refused on 31 July 2017. The decision to refuse the visa was affirmed by the Immigration Assessment Authority (“the Authority”) on 1 April 2018. The Authority decided, among other things, that the applicant had not satisfied the delegate or the Authority on review that he was a Christian at the time of his Safe-Haven-Enterprise-Visa interview or that he had a genuine and ongoing commitment to Christianity. The Authority further observed that it was not satisfied that the applicant had maintained any involvement with, or interest in, the Christian faith in Australia or that he would do so on return to Iran.[4]
[4] See Ex R1, 101 [33], 104 [46].
The applicant sought judicial review of the Authority’s decision. The applicant failed to attend before a Registrar of the Federal Circuit and Family Court of Australia and his judicial-review application was duly dismissed.[5] The applicant sought to have his application reinstated on 19 May 2021.
[5] Ex R1, 161 [3].
As part of its consideration of the reinstatement application, the Federal Circuit and Family Court of Australia considered the applicant’s prospects of success in challenging the Authority’s findings about his lack of a Christian faith. It found that the Authority’s findings, on the evidence before the Authority,[6] were open to it and that the applicant’s prospects of success were poor.[7] The Court declined to reinstate the application.
[6] Ex R1, 170 [51]
[7] Ex R1, 171 [56]
The applicant appealed this adverse decision to the Federal Court. The Court concluded that there was no error in the lower Court’s assessment of the prospects of success.[8] The appeal was dismissed with costs.
[8] Ex R1, 187 [48].
The applicant submitted to me that the Courts did not address the merits of his criticisms of the handling of his Christian-faith claim for protection. I do not accept this submission. The merits were addressed explicitly by both the Federal Circuit and Family Court and the Federal Court. They were found to be poor.
The nature of a judicial review hearing must always be borne in mind, however. Generally speaking, it is not a merits hearing conducted by reference to contemporaneous circumstances or new evidence. A judicial-review application seeks a review of the conclusion and supporting reasoning of the decision-maker in question. Such a review is usually conducted by reference to the evidence that was, or ought to have been, considered by the decision-maker; and the question that is asked is, in essence, whether the decision-maker erred in law in making his or her decision. In this case, the Courts’ reasoning addressed the likelihood of the applicant successfully impugning the reasons and final conclusion of the Authority, whose decision was reached in 2018. The Courts were not required to determine the wider question of whether the situation might have changed since the Authority’s decision and what evidence there might be to support that contention.[9]
[9] The Federal Court did note that the applicant had not adduced evidence in respect of his present-day Christian beliefs. This observation is explicable given the applicant’s argument. One argument the applicant had put to the Court was that the Authority had wrongly failed to call for further evidence in accordance with its express statutory power in this regard. The failure of the applicant to have adduced evidence of his present-day beliefs before the Court meant that even if the Authority had wrongfully failed to exercise its power to seek further evidence, there was no basis for concluding that the applicant would have adduced anything of substance had the Authority exercised its power. Any error of the Authority in this regard would have been immaterial to the outcome: see Ex R1, 187 [47].
Accordingly, the Authority’s assessment and the two Court decisions to which I have referred are not directly relevant to my consideration of the applicant’s Christian beliefs as at the date of my decision. There is nothing in the Authority’s assessment or in the Courts’ decisions that prevents me from reaching a contrary conclusion in respect of the applicant’s present-day Christian beliefs if such a conclusion is relevant to my decision-making and if the evidence before me supports it.
Application for a Bridging visa
I turn now to consider the applicant’s application for a Subclass 050 Bridging (General) visa as this was the subject of detailed submissions on his behalf. The visa was granted on 23 December 2015 and was to expire in late December 2016. It was cancelled on 11 November 2016 after the applicant was charged with aggravated robbery contrary to section 137(2) of the Criminal Law Consolidation Act 1935 (SA). The notification of the cancellation decision was, however, defective as a matter of law. The cancellation decision was re-notified to the applicant on 14 December 2022, many years later. By 14 December 2022, of course, the visa had already expired, even on the assumption that it was wrongly cancelled on 11 November 2016. The applicant promptly challenged the cancellation of his visa in this Tribunal after the decision was re-notified to him in 2022.
A Senior Member of this Tribunal, sitting in the Migration and Refugee Division (“MRD”), set aside the cancellation decision and substituted a decision that the applicant’s bridging visa should not be cancelled.[10] This decision did not have the effect, of course, of reinstating the visa (as the visa was time-limited to late December 2016).
[10] Ex R1, 66ff.
The applicant submitted strongly that I should follow the Senior Member’s reasoning and find that the applicant’s visa application before me ought not to be refused on character grounds under section 501(1) of the Act. It is convenient to address this submission now.
I do not accept the submission. First, it was put to me that I am legally bound to follow the Senior Member’s conclusion in my review because of the operation of the doctrine of issue estoppel. I do not accept this part of the submission. I did not hear full argument on whether the common-law doctrine of issue estoppel, which regulates proceedings in courts, applies to the decisions of this Tribunal. I am prepared to assume in the applicant’s favour that it does so apply, but it is a large assumption. Even so, the conditions for the operation of that doctrine have not been established to my satisfaction. There must be an identity of parties before issue estoppel can apply.[11] The respondent was not formally joined as a party in the MRD proceedings, and was not apparently heard given the procedures that regulate the hearing of matters of that type in the Division. There is no reference in the Senior Member’s reasons, for example, to any submission having been addressed to the Tribunal by the respondent.
[11] See, for example, J D Heydon, Cross on Evidence (LexisNexis Butterworths, 12^th ed 2020) 294 [5040].
Equally fundamentally, the ultimate issue before the Tribunal was different. I accept that the Tribunal was required to address whether the applicant’s bridging visa ought to remain cancelled. It is also true that the Tribunal gave considerable emphasis to the interests of the applicant’s son and to the applicant’s relationship with his partner. But those factors were evaluated and weighed in the context of a particular direction, Direction no. 63, which the Tribunal was obliged to apply in that case, as the reasons make clear.[12] The matters Direction no. 63 required to be addressed are referred to expressly in the reasons.[13] They are similar to, but not identical with, the matters that I am required to consider under Direction no. 99.
[12] Ex R1, 70 [30].
[13] Ex R1, 70 [31]ff.
That is an important matter. The exercise of the discretionary power was informed by the terms of the relevant direction. It cannot be said that the Senior Member had any regard to the terms of Direction no. 90 (then in force) let alone the future Direction no. 99: self-evidently, it would have been unnecessary, and legally irrelevant, for the Senior Member to have done so. I must say that I do not see how, as a matter of law, the Senior Member’s decision, as an exercise of discretion informed by Direction no. 63, can require me as a matter of law to reach the same conclusion in respect of the exercise of a discretion informed by Direction no. 99.
Mr Prince submitted in the alternative that as a matter of “comity” I ought to follow the Senior Member’s decision unless I was satisfied that it was plainly wrong or exceptional circumstances applied. I do not accept this aspect of the submission for much the same reasons. I am required to discharge my statutory review function by independently assessing the matter for myself. I do not begin with a prima facie view that I must follow any reasoning and conclusion as they might appear in the learned Senior Member’s reasons. I think that would be an error of law. Needless to say, had I reached a decision in this case contrary to the applicant, that would not mean that I had formed the view that the Senior Member was incorrect in her consideration of the matter before her. It simply would mean that I had reached a decision that happened not to reflect the Senior Member’s when I applied a different regulatory regime. Equally, the fact that my conclusion happens to be the same as the Senior Member’s does not mean that I have followed any particular reasoning in the Senior Member’s decision or given the reasoning presumptive weight. I thought it appropriate to set out my thinking in some detail because of the explicit written and oral submissions made on the applicant’s behalf in this regard.
Applicant’s criminal record
I now turn to the applicant’s criminal record, which was before me.[14] I need not canvas it in detail. The most serious offences[15] have involved dishonesty, theft, and serious criminal trespass. He has also committed the strongly anti-social offence of driving whilst having methamphetamine in the blood. There are other offences. There is one obvious and noteworthy feature about the record; namely, the applicant’s heavy use of drugs during this period of his life. The applicant was heavily dependent on methamphetamine and, more particularly, heroin.
[14] Ex R1, 27-28.
[15] In the sense of attracting the highest penalty.
It is clear from the most recent set of sentencing remarks[16] and from the applicant’s own evidence to me that his offending during this time was related to his drug habit. In short, he needed money to fund his habit. In the sentencing remarks, the Court referred to the applicant’s offending as being “brazen” and being similar to that “committed by defendants who are in a situation where drugs have taken over their lives” and where they find themselves in a “hopeless situation of having to fund their habit and resort to breaking the law”.[17] I note that the Court found that imprisonment was the only appropriate sentence for the type of offending before it and that there was no good reason to suspend the sentence. In particular, the Court decided that home detention was inappropriate.[18] A head sentence of twelve months and two weeks was imposed after the discount. The applicant became eligible for parole on 19 June 2020.
[16] Ex R1, 29-30.
[17] Ex R1, 29.
[18] Ex R1, 30.
Applicant’s personal relationships
The applicant has had two intimate relationships. On 6 November 2016, there was an incident of family violence perpetrated by the applicant upon his first partner. The charges in relation to that matter were withdrawn. The applicant submitted that I should not take account of the police apprehension report.[19] I do not accept that submission. I accept that the fact that charges are withdrawn can be relevant to a decision concerning a police report’s reliability. It is important to bear in mind, however, that many complaints of family violence do not lead to charges; or, if charges are laid, they end up not being pursued in the event. That is frequently the case given the intimate relations between the alleged perpetrator and the alleged victim.
[19] Ex R2, 25.
In this case, the mere fact of withdrawal of the charges does not lead me in all the circumstances to discount the apprehension report. The report makes it clear that the applicant was interviewed by police and that he admitted to having a heroin addiction, which he also admitted to me. The applicant is recorded as having said that he had lost control and demanded money from his partner (which she did not immediately give him). He admitted that when he was “out of control like this”,[20] he did not know what he was doing. This version of events is consistent with the applicant’s evidence to me that he had a drug habit that was fuelling uncontrolled and impulsive behaviour. The report further shows that he said he recalled grabbing the victim’s shirt and ripping it and then pushing her onto a bed from which she fell to the floor. The report indicates that the applicant denied kicking the victim but he also said he did not remember. He did admit, however, to taking $100 from her and catching a bus to buy heroin from a dealer on Grand Junction Road. He said he then returned to their premises to use the drugs. The applicant’s version of events is similar to his partner’s (although he denies, and then says he does not remember, some aspects of the violence he inflicted). There is no doubt that the police were summoned to the premises on this particular day. In all the circumstances, I think I can safely rely on this police apprehension report, and I find for the purposes of my review that the victim’s version of events as recorded in the report occurred.
[20] Ex R2, 25.

The relationship in question has now ended, and I note that the event is, as at the date of my review, some six-and-a-half years old.
The second of the two relationships to which I referred is ongoing. The applicant’s current partner is the mother of the applicant’s son. I shall refer to this partner as “Ms K”. She gave evidence before me. As I have said, the relationship is ongoing and it is a genuine one in my view. Their child was born while the applicant was in jail.
REASONS
I now turn to consider and apply Direction no. 99 (“the Direction”). In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks at [30] to [33], which I repeat again:
30 The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
31 Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
32 First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
33 Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to primary considerations over other considerations.
I turn now to consider the primary considerations. The first of these is the protection of the community from criminal or other serious conduct. When considering the protection of the Australian community, I am required, by paragraph 8.1(1), to bear in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I am to have particular regard to the principle that 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. I bear this principle in mind.
By subparagraph (2), I must give consideration to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct. In considering the nature and seriousness of the applicant’s conduct, I am to have regard to a number of matters which are set out in subparagraphs (a) to (h) of paragraph 8.1.1(1). I note specifically that violent crimes, crimes against women, and acts of family violence (whether or not there is a conviction for an offence or a sentence imposed) are all to be regarded very seriously. I do so.
I note the one instance of family violence that has been put in this case and to which I have already referred. The respondent very fairly did not press me with a submission that there were other instances of violence involving the applicant’s former partner or Ms K. It might be thought surprising that this is the one and only instance of such violence; but on the other hand the violence appears to have been prompted by a lack of money to fund a purchase of heroin, rather than being a regular feature of the partners’ life together.
I accept the respondent’s submissions with respect to the dishonesty offences and the driving offence.[21] I make it quite clear that driving a vehicle while having an illicit drug in one’s bloodstream is entirely unacceptable. A person driving in that situation poses a direct and immediate threat to other road-users, whether they be pedestrians or other drivers. Accidents can have the most profound life-changing effects on those who are involved in them. I weigh heavily the deprivation of property from members of the Australian community and any unlawful entry into their premises. As I have said on other occasions, it is the legitimate expectation of all residents in this country that they should enjoy their domestic or business premises and their possessions in peace. A person’s capacity to enjoy civil society and participate in it with confidence can be substantially affected by the type of crimes of which the applicant was convicted. I have had regard to the sentences imposed by the courts[22] and I have already referred to the sentencing court’s decision on the most recent occasion to decline to suspend the sentence or to order that it be served on home detention. Clearly, the applicant had reached a point in his criminal offending where a substantial period of time needed to be served in jail.
[21] See in particular Ex R3, [8] and [26]-[30].
[22] Cf paragraph 8.1.1(1)(c) of the Direction.
I think there is a trend of increasing seriousness in the applicant’s record and some frequency.[23] I say this because the record before me shows quite clearly that the applicant had breached bail on a number of occasions and was committing offences whilst on bail. That is a very serious matter. The applicant’s offending was increasing in seriousness because it involved such a strong level of defiance. The applicant was at a stage where he needed to engage actively with rehabilitation services so far as his drug dependence was concerned. He choose not to do so. That is the choice he made.
[23] Cf paragraph 8.1.1(1)(d) of the Direction.
I am to have regard to the cumulative effect of repeated offending[24] and I do so.
[24] Cf paragraph 8.1.1(1)(e) of the Direction.
I accept that the applicant may well have provided misleading information[25] in his protection- visa application by not adverting at any stage to his criminal history at that time, including the pending charges against him. I also accept that the applicant’s bridging visa was cancelled while he was in jail and that he must have appreciated at that point that further criminal offending would put his migration status in Australia at risk. He has reoffended since that cancellation.[26] That, too, is a very serious matter. Following the cancellation of his visa, the applicant must have appreciated that his criminal behaviour would put at risk his chances of receiving any visa in the future, without which he could not expect to live freely in the Australian community. He could hardly have thought otherwise.
[25] Cf paragraph 8.1.1(1)(f) of the Direction.
[26] Cf paragraph 8.1.1(1)(g) of the Direction.
I now turn to consider the question of risk to the Australian community. I note what appears in paragraph 8.1.2(1) without repeating it.
I am required to assess three matters cumulatively.[27] First, I am to assume under subparagraph (a) that the applicant does engage in further criminal or other serious conduct and then identify the nature of the harm to individuals or the Australian community. If the applicant returns to a drug habit and commits offences of the type he has already committed, there will be serious consequences for the Australian community. I have already referred to the impact upon those who lose their property or are disturbed in the quiet enjoyment of their premises, and I have also referred to the threat to other road users and pedestrians when people drive whilst under the influence of drugs. I would also refer here to the harm that the applicant’s partner would suffer if there were family violence of the type in which he has engaged in the past. The harm that can be done to a domestic partner (and now, I note, a child is involved as well) is particularly unpredictable when the violence is compelled by an imperative to obtain money for drugs.
[27] Cf paragraph 8.1.2(2) of the Direction.
I must also have regard, under subparagraph (b), to the likelihood of the applicant re-engaging in the conduct. I accept that there is no evidence before me that the applicant has used drugs in jail or immigration detention. It was not suggested to the applicant in cross-examination that he had done so. I accept that he has been free of drugs during this period of time. That is an important aspect of the applicant’s rehabilitation.
I do not accept the applicant’s submission that his risk of relapse is no greater than the risk of an ordinary member of the community taking illicit drugs for the first time. This submission ignores, in my opinion, the complex array of psychological factors that cause some individuals in our society to cross well-appreciated boundaries and commence illicit drug-taking. It is a fact that many people do relapse. I do accept, however, that on the evidence before me, the applicant’s physical addiction to illicit drugs has been broken. But there has been no psychological intervention in his case, and that is a matter I need to weigh. In this connection, I note that I did not find the evidence of the psychologist called by the applicant, Mr Abiyat, helpful.
I do accept, however, that the applicant now appreciates how precarious his situation has become. The applicant has requested the Minister’s personal intervention. He has one final opportunity to persuade the Minister to allow him to remain in Australia. He must well know that while that matter is under consideration, any further criminal activity on his part will result in jail and the refusal by the Minister of his request for intervention. The applicant has indicated that he does not intend to return to Iran, and I accept that the Iranian Government does not accept its citizens back unless they return voluntarily. But I do not believe the applicant believes that if he committed further offences in the community, the Australian Government would be willing to allow him to remain in the community. A very prolonged period of detention in an immigration detention centre would be the likely, indeed almost inevitable, result. This provides an extremely powerful deterrent.
I believe also that there are protective factors. The applicant proposes to resume his relationship with Ms K and their son. I have already indicated that the relationship with Ms K is a genuine one. The applicant has met other Iranians in Adelaide through a Christian church, and there is a prospect that that connection will lead to a job outcome for the applicant.[28] That would be a positive for him.
[28] Ex A5, [9].
I believe also that ongoing association with a Christian community is, in the case of this applicant, an important protective factor. I received evidence from a retired pastor in the Baptist Church, Mr Stanley-Smith, who gave oral evidence in support of his statutory declaration.[29] I accept his evidence.
[29] Ex A5.
I should add that I do not believe Ms K will be able to exercise any effective restraint on the applicant if he decides to return to drugs. She has been unable to do so in the past, but a stable home environment will itself assist the applicant to make the prosocial choices that he needs to make in the future. He does need, in my opinion, to engage with rehabilitation services. I do not believe that Mr Abiyat should be the applicant’s sole psychological support. Mr Abiyat has the undoubted advantage of speaking the applicant’s first language and so there is an immediate and important pathway of direct communication: a lack of language and of cultural familiarity do not pose obstacles to communication between the applicant and Mr Abiyat. But Mr Abiyat does not have the necessary expertise to guide the applicant and to progress his drug rehabilitation from a psychological perspective.
The third factor I am required to consider[30] under “risk” is 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. I must say that I find the drafting of this subparagraph curious. The existence of “strong or compassionate reasons for granting a short stay visa” does not seem to me to be relevant to my assessment of any risk posed by the applicant to the Australian community under this part of the Direction. It is a rather strange concept.
[30] Cf subparagraph (c) of paragraph 8.1.2(2).
That said, I certainly accept that the sort of visa under consideration may well be relevant to the Tribunal’s estimation of risk. In this regard, I make the following points. The applicant is seeking a visa which is time-limited. So far as I am aware, the visa the applicant seeks may be a short one and can be linked to the decision to be reached by the Minister in respect of his correspondence to the Minister requesting his personal intervention. The applicant’s solicitor wrote to the Minister on 20 December 2022. The response from the Department dated 26 April 2023 was in evidence before me.[31] It acknowledges the applicant’s solicitor’s correspondence and apologises for the delay in responding. The response does not commit the Minister to a timetable for the final disposition of the matters raised in the correspondence, and it specifically notes the absence of any timeframes which bind the Minister. It notes that the applicant’s solicitor will be notified of the outcome in due course. I was not provided with a copy of the correspondence to the Minister. I note also that other correspondence has been sent to the Minister requesting his intervention and this was before me.[32]
[31] Ex A9.
[32] See Ex R1, 121ff, 139ff.
If I were to set aside the decision under review and substitute a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Act, the legal consequence of my decision may well be the grant of the bridging visa. But if that visa were linked to the date of the decision the Minister makes in respect of the correspondence dated 20 December 2022, it becomes clear that the time the applicant would spend in the community under the bridging visa will be under the control of the Minister. That is to say, the Minister could, if so minded, proceed to consider the correspondence of 20 December 2022 and make a decision promptly. If the decision were to decline the request for intervention, the applicant’s right to remain in the community under the bridging visa would be brought to an end by that decision. Equally, if the Minister decided to grant a visa under, say, section 195A of the Act, the bridging visa would end at that point and a new visa would take over. So I believe the correct characterisation of the situation is one where the risk of harm to the Australian community of the applicant’s presence in it is under the control of the responsible Minister. That is a relevant factor in my opinion.
I understood the respondent to have submitted that because the Minister may take a long time to decide whether to intervene personally, I could have no confidence that the applicant’s risk profile will be diminished by a short stay in the community under the bridging visa. That may well be true, but I do not think I should ignore the fact that it is the Minister who will have a personal power to bring the bridging visa to an end at any time by rendering a decision in respect of the correspondence he received some five months ago.
That is an important matter. As the Department is particularly concerned about the presence of the applicant in the community, it can always indicate to the Minister that it proposes not to refuse the bridging visa as a result of any decision by me to set aside the decision under review, prepare any advice it wishes to provide to the Minister in respect of the correspondence dated 20 December 2022, and recommend to the Minister that he progress his decision promptly on the correspondence. That is what an efficient and diligent Department can be expected to do, I believe, if I set aside the decision under review. I do not think that I should proceed on the basis that the Department could not, or would not, take these steps. The right of the Minister to bring the bridging visa to an end through a decision on the correspondence he has received is an unusual feature of this case, but it is one that I believe is relevant to the decision I must reach.
All in all, I regard the risk profile here as low having regard to all factors I am required to consider. I note again that I must take matters into account “cumulatively” under paragraph 8.1.2(2) of the Direction.
I am required to have regard to family violence committed by the applicant.[33] I have already indicated that the police apprehension report is accurate and reliable. I do not have sufficient evidence before me to suggest there has been any frequency in the applicant’s conduct and whether there is any trend of increasing seriousness.[34] There has been rehabilitation (in the sense of a cessation of the drug use that explained the earlier offending), but there has not been a demonstrated acceptance of responsibility for the family violence or a demonstrated understanding of its impact on the victim, nor have there been efforts to address factors which contributed to that offending other than a cessation of drug taking.[35] Nevertheless the cessation of the physical habit is an important step.
[33] Cf paragraph 8.2 of the Direction.
[34] Cf paragraph 8.3(a) of the Direction.
[35] Cf paragraph 8.2(3)(c) of the Direction.
The strength, nature and duration of ties to Australia is a primary consideration under paragraph 8.3 of the Direction. I take into account Ms K’s relationship with the applicant. She would benefit substantially from a positive, drug-free resumption of her relationship with the applicant now that she is the mother of a young child. There would be some risk to her if the applicant returned to a drug habit and I take that into account, but, all in all, I think she would benefit substantially from a resumption of their relationship.

I accept that the applicant has had a chequered history in Australia since arriving in 2013. He did not spend his formative years in Australia. He developed an illicit drug habit early on, and the violent episode in 2016 was the result of a then serious heroin addiction. He began engaging in antisocial behaviour shortly after his arrival in Australia and has not contributed positively to the Australian community. The applicant’s own interest in remaining in Australia is to be accorded less weight for these reasons under the Direction.[36]
[36] Paragraph 8.3(4)(a)(iii).
The applicant has a young son by Ms K. I am required to weigh this child’s interests.[37] I accept that his interests in developing a relationship with his father do favour a setting aside of the decision. I acknowledge that the relationship is practically non-existent at the present time.[38] The child has never had genuine one-on-one contact with the applicant: the applicant was in jail when the child was born. Even if it is for a short time only (because the Minister will decline to intervene and the bridging visa is thereby brought to an end) I do believe it is in the interests of the child to have some meaningful one-on-one contact with his biological father. I accept that Ms K performs her role as a mother admirably in difficult circumstances and that there are others who assist her. I remain of the view, however, as I have indicated in the past, that it is in a child’s interests to develop a positive relationship with both biological parents, although I appreciate that any resumption of a drug habit will bring substantial dysfunction to the family. I find that I am in broad agreement with the delegate’s treatment of the child’s interests in his or her reasons.[39] I do not have any evidence before me that suggests that if the applicant had to return to immigration detention, there would be a harmful psychological effect upon the child that would outweigh the positive psychological effect of having had at least some time with his father. Accordingly, on balance, like the delegate, I accord this matter some weight in the applicant’s favour.
[37] Paragraph 8.4.
[38] Cf paragraph 8.4(4)(a)1.1(1)(e) of the Direction.
[39] Ex R1, 18-19 [50]-[58].
So far as the expectations of the Australian community are concerned,[40] I accept that this consideration counts substantially against the applicant. I acknowledge what appears in paragraph 8.5(1) without setting it out. The applicant’s behaviour has been strongly antisocial because the taking of drugs can lead to crimes where there is unpredictable and unregulated behaviour. Violence towards an intimate partner has been one feature, for example, of this applicant’s offending as has his urgent need to obtain money (because of his drug dependence). Poor behaviour, in terms of making antisocial decisions to drive whilst under the influence of drugs and take others’ property, is also a feature in this case. The community expectations, which I am to take as given in the direction and not set myself[41] and which apply regardless of whether the applicant poses a measurable risk of causing physical harm to the community,[42] do speak strongly against the applicant. I note also that family violence is mentioned specifically as a type of conduct that should give me particular concern.[43]
[40] Required to be considered under paragraph 8.5 of the Direction.
[41] Cf paragraph 8.5(4) of the Direction.
[42] Cf paragraph 8.5(5) of the Direction.
[43] Cf paragraph 8.5(2)(a) of the Direction.
Under section 9 of the Direction, I must have regard to “other” considerations. The continuation of the applicant’s detention will be, for practical purposes, the legal consequence of my decision if I affirm the decision under review.[44] In this regard, I note that it might be said that it has been the applicant’s decision to remain in detention rather than return to Iran. But I need to be careful about that proposition. First, the applicant must remain in Australia if he is to have any chance of his request to the Minister being granted. He could not return to Iran and realistically expect any favourable outcome from his request to remain in Australia.
[44] Cf paragraph 9(1)(a) of the Direction.
Secondly, as matters presently stand, I am not prepared to find that the applicant’s request for ministerial intervention is somehow merely a delaying tactic or otherwise non-genuine. It is true that the Authority on the evidence before it at that point in time discounted the applicant’s Christian faith. I have already referred to the Court decisions that indicated that the applicant’s prospects of seeking a judicial review successfully in respect of this adverse assessment were poor. I accept what is put in the respective decisions.
The evidence before me, however ‒ as of 2023 and not as of 2018 ‒ indicates that the applicant does have genuine Christian beliefs. I do not base this assessment solely, or even principally, on the applicant’s evidence. The applicant’s Christianity has been substantially confirmed in the statement provided by Mr Stanley-Smith, a retired Christian pastor, who has developed a relationship with the applicant. He describes the applicant as having become a more mature Christian with a growing knowledge of the Bible.[45] He gave supporting oral evidence to the Tribunal. [46]
[45] Ex A5 [7].
[46] I might also note that the decision to remain in detention rather than return to Iran may be justified as well in light of what I take to be the unpredictable situation in the country given the demonstrations against the regime that have occurred and the severe repression of demonstrators that has been widely publicised. But I cannot say on the evidence before me that that is an additional reason to reasonably prefer detention to returning to Iran at the present time.
All in all, therefore, were I to affirm the decision under review, the probable legal consequence would be the continued detention of the applicant in immigration detention, when, in my estimation, it is reasonable for him in all the circumstances not to elect to return to Iran until the Minister decides his application.
The prospect of ongoing detention until the Minister decides the applicant’s request for his intervention is one that I must weigh. Its length is, of course, commensurate with the length of time the Minister takes to decide whether to intervene. That could be a very short time or it could be a long time. If the applicant is securely in detention, he cannot pose any threat to the community. In these circumstances, there is no need for a prompt decision by the Minister to safeguard the interests of the community at large. There is, of course, a need for the Minister to progress consideration of the request for intervention so as to finalise the correspondence in due course and to treat the applicant fairly.
Whether the Minister would give the matter prompt attention is hard to predict. It was not the subject of evidence or submissions before me. At a practical level, the Minister is dependent on the correspondence he receives being addressed by departmental officials in the first instance. He can be expected to call for a report from departmental officials in respect of the applicant’s file and case. I note that Exhibit A9, to which I have referred above, is on departmental, and not ministerial, letterhead.
The time that this process may take could be quite prolonged. It has already taken some four months for an acknowledgement of the applicant’s solicitor’s correspondence to be issued and there is no commitment to any timeframe. The prospect of prolonged immigration detention, if I affirm the decision under review is, therefore, a real one.
In my opinion, WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 (“WKMZ”) is a relevant authority in this regard. The plurality’s reasons emphasise, if any emphasis were needed, the importance the common law attaches to liberty as one of our society’s most fundamental human rights.[47] The plurality’s reasons make clear the relevance of ongoing detention to a decision-maker’s decision. I note in this regard that the applicant has been in detention now for some considerable time: nearly three years since leaving jail in mid-2020. I do not need to decide whether the respondent bears responsibility for delays in this matter. Without an attribution of fault and without any examination of the matter in detail, it remains a fact that the applicant has been in detention for a considerable time.
[47] See plurality’s reasons at [123].
The applicant seeks an opportunity to live in the community with his partner and child pending consideration of his request for ministerial intervention. The weight to be accorded to the applicant’s interest in his own liberty increases the longer he has spent in detention.
There are no other considerations in section 9 which I need to weigh. In particular, I do not need to weigh non-refoulement obligations as there is no prospect of the applicant voluntarily returning to Iran if I affirm the decision under review and no prospect of his being forcibly removed to Iran because of the attitude of the Iranian government (which will refuse him entry unless he voluntarily returns).
WEIGHING THE VARIOUS CONSIDERATIONS
I now turn to weigh the various considerations. This has been a difficult case but I believe the outcome becomes clearer if one bears in mind the essential problem. The applicant’s behaviour has been strongly antisocial and there is still a risk of his re-engaging in that behaviour. He will be under some significant pressure in the community awaiting the Minister’s decision in respect of his request for intervention. He will feel pressure. A return to drug abuse cannot be excluded despite the protective factors to which I have referred. On the other hand, if the applicant returns to the community under a bridging visa that is tied to the date of the decision to be taken by the Minister, the respondent has a very clear means of limiting the risk this applicant will pose to the community through his prolonged presence in it. I have already referred to the matters that favour not refusing the grant of a bridging visa on character grounds and these include the interests of the applicant’s son and Ms K. The son, in particular, can be seen to be the innocent victim of the dysfunction caused in a family by drug misuse and the consequences of incarceration following crimes of dishonesty committed to find money for drugs. These are primary considerations. I have also weighed the interest of the applicant in not being detained in an immigration detention centre for a prolonged period of time when the respondent’s officers have not been able to indicate to the Tribunal a timeframe for the making of the Minster’s decision.
If the ministerial decision were about to be made, the application to this Tribunal would be virtually pointless since the ministerial decision would decide the applicant’s future one way or the other. But that is not the case on the evidence before me, and perhaps some concern already arises from the fact that the respondent’s Department took four months to acknowledge receipt of the applicant’s correspondence on the Minister’s behalf. Moreover, that acknowledgment, despite the passage of some four months, does not refer to any likely timeline ‒ even an indicative one ‒ for progressing the applicant’s request.
All in all, I have decided that the correct or preferable decision on balance is not to refuse the applicant’s application for a bridging visa on character grounds under section 501(1) of the Act.
Finally, it is not formally a part of my statutory function to offer observations on how the Minister might choose to respond to the request for intervention made to him. That is not a matter before me. Equally, however, this Tribunal, in a broader sense, should assist in good and proper administration, particularly where, as is the case here, it has taken evidence over some days.
On the evidence before me, I believe there are grounds for permitting this applicant to re-agitate his concerns that he should be granted a visa to reflect his protection concerns. The applicant’s Christian beliefs today have been verified by a statutory declaration made by a pastor who gave sworn oral evidence before me. That is an important aspect of this matter and serves to differentiate the situation from that earlier considered by the Immigration Assessment Authority and the Courts.
The situation of Christians in Iran is clearly a matter of real concern. It is accepted in the DFAT Country Information Report tendered by the respondent[48] that Iranian law prohibits conversion from Islam to Christianity or to any other religion.[49] That is a telling prohibition, and it speaks to the lack of religious freedom in that country. The practice of Christianity is apparently only tolerated in Iran on the basis that it predates Islam. Farsi-language services are not permitted so as to hinder proselytization.[50] No Christian churches have been allowed to be built since the Islamic revolution in 1979.[51] The activities of Christian communities are closely regulated.[52] Although Christians may lawfully practise their faith within the confines of what is described in the Report as an Islamic “theocracy”[53], converts like the applicant would appear to face particular difficulties and prohibitions. The information in the Report is now three years old. In addition, it may be that Christian communities currently face additional restrictions in the context of the recent and notorious crackdown on civilian rights; but I make it clear that I do not know that and have no information before me to that effect.
[48] Department of Foreign Affairs and Trade, DFAT Country Information Report - Iran, 14 April 2020: see Ex R2, 283ff.
[49] Ex R2, 312 [3.37].
[50] Ibid.
[51] Ibid.
[52] Ex R2, 312 [3.38].
[53] Ex R2, 310 [3.28].
All in all, I believe the Minister should give active consideration to allowing the applicant to present afresh his case for protection.
FORMAL DECISION
My formal decision will be to set aside the decision under review and to substitute a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Act.
I certify that the preceding seventy-five (75)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]……………………
Associate
Dated: 23 June 2023
Dates of hearing:         11, 18 and 22 May 2023
Advocate for the Applicant:      S Prince, SC
State Chambers
Advocate for the Respondent:  T Ellison
Australian Government Solicitor