LRPB and Minister for Immigration and Border Protection (Migration) - [2017] AATA 1737

LRPB and Minister for Immigration and Border Protection (Migration) [2017] AATA 1737 (12 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4532
Re:LRPB
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:12 October 2017
Place:Brisbane

The decision under review is affirmed.
..........................[sgd]...............................
Senior Member T. Tavoularis
MIGRATION – Visa Refusal – Applicant is a citizen of Iran – Applicant applied for a Bridging visa – s 501 character test applied – history of offending - Applicant does not pass character test in s 501(6) - whether discretion to refuse visa should be exercised – whether considerations in Direction No. 65 weigh in favour of refusing visa – visa should be refused – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501
Cases
Bhardwaj and Minister for Immigration and Border Protection [2017] AATA 86
Johnson and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 304
Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under
s 501CA (“Direction No. 65”)

REASONS FOR DECISION
Senior Member T. Tavoularis
12 October 2017
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister of Immigration and Border Protection (the “Minister” or “Respondent”) to refuse “LRPB”[1] (“the Applicant”) a Bridging E (Class WE) visa, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
[1] The Applicant’s name has been suppressed due to the Applicant’s related application for a safe haven visa.
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant is a citizen of Iran. He is currently 33 years of age. He first entered Australia on 16 July 2013 as an unauthorised maritime arrival.
The Applicant has accumulated a history of offending since being in Australia. This history of offending will be summarised below.
On 15 May 2017 the Applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”). In association with that application the Applicant applied for a Bridging (Class WE) visa (“the bridging visa”). The Bridging visa is the subject of the current review before me. My understanding is that the SHEV was refused on 31 July 2017 but is being reviewed by the Immigration Assessment Authority (“IAA”).[2]
[2] Unless a decision has been made by the IAA before the time of my decision.
On 20 June 2017 the Department of Immigration and Border Protection (“the Department”) sent the Applicant’s representative a Notice of Intention to Consider Refusal of the Applicant’s bridging visa in association with his SHEV application, on the basis that the Applicant did not pass the character test in section 501(6) of the Act.
On 10 July 2017 the Applicant’s representative responded to that Notice and provided documents in support of the visa application, purporting to address (a) the seriousness and nature of his conduct, and (b) his risk of reoffending, together with certain ancillary documentation comprising supportive statements, medical information, an explanatory letter from the Applicant regarding his actions towards his wife and a copy of his Queensland Criminal History.[3] The Department received this information by email on 12 July 2017.
[3] See Exhibit 1 and Exhibit 6: G 11-G16 and G19-G20.
On 25 July 2017 a decision was made by a delegate of the Minister to refuse the Applicant the bridging visa pursuant to section 501(1) of the Act. Notice of the visa refusal decision was sent via email to the Applicant’s representative the following day. [4]
[4] See Exhibit 6, G3 and G4, p 8-19.
On 2 August 2017 the Applicant applied to this Tribunal for review of that visa refusal decision.
ISSUES
The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to subsections 501(6)(a) and 501(7)(c). After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant’s visa.
The issues for this Tribunal to consider are essentially the same, being:
(a)whether the Applicant passes the character test as defined in s 501(6) of the Act; and
(b)if he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant the visa.
ISSUE 1: CHARACTER TEST
The first issue I must consider is whether, objectively speaking, the Applicant passes or fails the character test as defined in s 501(6) of the Act.
I note that the Applicant concedes he does not pass the character test. In his Statement to the Respondent he conceded: “I accept I have a substantial criminal record and accordingly do not pass the character test.”[5] He also conceded that he has “committed offences of a serious nature and my criminal record is relatively long”.[6] For the sake of completeness I will briefly address the issue of the character test.
[5] See Exhibit 1, p 1.
[6] See Exhibit 1, p 1.
Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record” as defined in s 501(7). In s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.
Summary of criminal offending
The Applicant has a reasonably lengthy criminal history in Australia. On 20 October 2016 at the Cleveland Magistrates Court he was sentenced to a series of custodial terms for a plethora of charges. The regime of sentencing for the relevant offending may be summarised as follows: [7]
·12 months imprisonment for: contravention of a domestic violence order, committed on 15 March 2016;
·2 months imprisonment for: two breaches of bail, committed on 22 October 2015 and 23 February 2016;
·9 months imprisonment for: stealing, committed on 8 January 2016;
·6 months imprisonment for: two stealing offences (committed on 12 September 2015 and 24 January 2016), two further contraventions of the domestic violence order (committed on 15 October 2015 and 4 April 2016), one count of break and enter premises and commit indictable offence (committed on 6 November 2015). In addition, the Applicant was convicted (but not further punished) of two counts of contravening a direction or requirement of lawful authority (committed between 22 September 2015 and 30 September 2015) and one count of breach of bail (committed on 15 October 2015);
·8 months imprisonment for: four stealing offences, committed on 26 August 2015, 15 September 2015, 13 September 2015 and 6 August 2015;
·8 months imprisonment for: 24 charges of fraud involving dishonestly obtaining property from another (committed on various dates), and a charge of unlawful possession of property reasonably suspected of being stolen, which was committed on 4 April 2016;
·3 months imprisonment for: one count of contravention of release conditions (committed on 26 September 2015), one charge of stealing (committed on 15 October 2015), one count of receiving tainted property (committed on 11 August 2015), seven charges of fraud involving the dishonest application of the property of another (committed on various dates), plus attempted fraud charges (committed on various dates).
[7] See Exhibit 6, G6, pp 62 – 64.
For the purposes of accuracy and fairness to the Applicant, it should be noted that the sentencing regime was concurrent, such that the ‘head sentence’ imposed was 12 months, which incorporated all other sentences.[8]
[8] I note that the Applicant was released on parole after serving 199 days of pre-sentence custody.
I further note that some sentences also had a restitution element attached to them, as follows:
·$1,205.50 for the offences in the fourth bullet point above;
·$1,651.95 for the offences in the sixth bullet point above;
·$295.78 for the offences in the final bullet point above.
Although not pivotal in any assessment of him passing or failing the character test, it appears from the material that the Applicant says has remitted these restitution amounts in full.[9]
[9] See Exhibits 1 and 4.
Character test conclusion
The wording of s 501(7)(c) is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served. In circumstances where this Applicant has received a custodial term of imprisonment of 12 months he does not pass the character test. It is irrelevant how much time he spent in actual custody.
ISSUE 2: DISCRETION TO REFUSE VISA
In circumstances where a visa Applicant does not pass the character test, the determinative issue then becomes whether the decision maker should exercise the discretion in s 501(1) of the Act to refuse the visa.
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
… a decision maker must take into account the considerations in Part A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.[10]
[10] Direction No. 65, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised as follows:
(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;
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4) In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable;
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
Paragraph 8(1) of the Direction provides that decision-maker must take into account the primary and other considerations relevant to the individual case.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides the three primary considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia; and
c)    Expectations of the Australian community.
The other considerations which must be taken into account for visa refusal matters are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal activity or other serious conduct. Paragraph 11.1 of the Direction further provides that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct, which relevantly includes the following:
a.    The principle that violent and/or sexual crimes are viewed seriously;
b.    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c.    …
d.    …
e.    The sentences imposed by the courts for a crime or crimes;
f.   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g.    The cumulative effect of repeated offending;
h.    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i.   …
It is difficult for me to avoid the conclusion that this Applicant’s offending has indeed been serious. As mentioned above, he has conceded as much. He has committed serious and violent offences ranging from contravention of domestic violence orders (involving the administration of violence against his wife resulting in serious bodily injury) to offences involving criminal transgressions against the property rights of vulnerable citizens in the community, and further, offences involving a blatant refusal to recognise and respect lawful authority. I therefore accept the contention that these crimes should be characterised as serious and that his sentences are an accurate reflection of the nature of his offending.
The Applicant’s offending arising from circumstances that lead to a Domestic Violence Order (“DVO”) being taken out against him, and subsequent contraventions of the subject DVO, is frankly appalling and beyond excuse. One aspect of the contravention involved him taking it upon himself to take a baseball bat and administer – with obvious and extreme force – his idea of matrimonial discipline upon his wife. This episode culminated in him striking her arm with the baseball bat with such force that her arm was fractured and she sustained bruising to other parts of her body. When questioned by the police about how her arm came to be broken he initially denied any wrongdoing. His response was both cynical and untruthful: he told police that she sustained her injuries by falling from her bed.[11]
[11] See Exhibit 7, Summonsed documents from QPS, p 2.
His history of offending also demonstrates an almost complete refusal to respect the property rights of others. There are numerous offences for stealing. I appreciate the financial stricture that would confront a person who entered Australia seeking asylum and who was thus precluded from working until granted an appropriate visa. While I appreciate this financial difficulty, I cannot accept it as a counter-balancing measure for repeated acts of pre-meditated theft including the forced entry into other people’s private property for the commission of stealing offences.
The hearing before me heard evidence – indeed dreadful evidence – about one of the Applicant’s stealing offences involving the forced taking of the purse / wallet of a severely disabled person who was so unwell that their condition requires the assistance of a 24 hour constant carer. Despite the ridiculously advantageous difference in physical capability between the Applicant and the victim, the Applicant failed to distinguish right from wrong and helped himself to both the wallet of the victim and whatever was in it. This type of offending against vulnerable members of the community can only speak to the dreadful nature of the offending and its obvious seriousness.
Similarly, offences involving fraud should be regarded as serious, especially when committed in a concentrated burst over a relatively short period of time. The conception and commission of a fraud offence, to my mind, betrays a demeaning mindset in the perpetrator who thinks he can outsmart or deceive the victim and profit therefrom. In a fundamental sense, this false sense of cleverness is, in itself, conduct that leads to the commission of further and more serious fraud – type offences.
In terms of the seriousness of his offending, it is notable that he has committed approximately 50 offences during an eight month period (between August 2015 and April 2016) and that for virtually each and every one of those offences a term of imprisonment was imposed.[12] It should also be borne in mind that the imposition of a custodial term is usually the last resort in a sentencing court’s hierarchy of sentences.
[12] It is noted that for the offences of: (1) contravene direction or requirement of lawful authority, and (2) breach of bail condition, were punished by way of a conviction being recorded but that the Applicant not be further punished.
It is also clear from the evidence that the Applicant has provided false or misleading information to lawful authority. While not strictly within the parameters of paragraph 11.1.1(1)(h) of the Direction, the Applicant, when applying for the safe haven enterprise visa on 18 May 2017, told the Respondent’s department that he had been convicted of “shoplifting as well as family violence”.[13] Although he did not actually conceal the offending history there can be no question he sought to minimise its severity in the eyes of the department who would peruse it. No doubt the department would have made its own enquiries but the downplaying of his history of offending does the Applicant no favours in this application.
[13] See Exhibit 6, G5, p 23.
Upon application of the above factors in paragraph 11.1.1(1) of the Direction to both the written and oral evidence now before me, I have little difficulty in agreeing with the Minister’s delegate in finding that the nature and totality of the Applicant’s offending can only be viewed as serious.
(b) The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(3) of the Direction provides two of the factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. Stated briefly they are:
(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 available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, and the duration of the intended stay in Australia.
The Nature of Potential Future Harm

As previously mentioned, the Applicant has committed a number of offences involving significant transgressions against the personal and property rights of others. There is also the domestic violence history involving his wife plus additional offences involving a refusal to respect lawful authority – be it in the form of him breaching his bail conditions or a direct refusal to follow a direction from lawful authority. Taken in totality, his offending must be viewed as serious. There is no other way to characterise it.
It is contended on behalf of the Applicant that he has “… an offending period of eight months out of 50 months in Australia which is only approximately 16 per cent of his time in Australia.”[14] I do not think there is anything meritorious about a submission that the Applicant has been offending for 16 per cent of the total time he has spent in this country – a country he urges us to believe he now wants to call home.
[14] See Exhibit 4, Applicant’s response to the Respondent’s SFIC dated 27 September 2017, p 2 at [6].
To my mind, this submission can (and probably should) be looked at in another way: by adopting a holistic view of his offending and the cumulative total of the sentences he received for each offence or bundle of offences as a ratio of the total time he has been here. That analysis makes for much more sombre reading. Assuming he has been in Australia for 50 months, the total amount of custodial time for each of the approximately 50 offences for which he was sentenced amounts to 48 months. Expressed as a ratio or percentage, it means the Applicant’s offending has caused him to be punished by custodial terms equating to 96 per cent of his total time in this country thus far.[15]
[15] Noting he has been in immigration detention for approximately 12 months.
It is true to say all of his sentences were imposed on the one date (20 October 2016) but those offences for which he was punished were committed on various dates across an eight month period.[16] The further point is that any suggestion this eight month spree of offending is, somehow, a “spike” or “blip” in the timeline of his stay in Australia is, in my view, misplaced. If it is viewed as a “spike”, it is a very significant “spike” and is certainly not suggestive of a momentary lack of judgment or self-control.
[16] The first offence was committed on 6 August 2015 and the final offence on 4 April 2016.
The sheer scale and variety of the offences preclude any such conclusion. In less than a year of his total time in the Australian community, the Applicant’s offending assumed multi-dimensional proportions. It comprised:
(i)serious domestic violence against his wife;
(ii)multiple charges of stealing representing an obvious refusal to respect the personal property rights of others;
(iii)perhaps more sophisticated and cynical offending in the form of actual fraud (31 charges) and attempted fraud (3 charges);
(iv)a failure to respect and observe a privilege afforded to him in the form of release on bail;
(v)a refusal to respect lawful authority.
The Applicant contends “…Australia is a humanitarian country where people receive fair treatment and fair judgement.”[17] Clearly, Australia is just that. This country has extended a humanitarian hand to him in the form of: (a) an opportunity (bail) to remain in the community with his wife, and (b) an opportunity to live in a safe and well-regulated society giving him the further opportunity to prioritise his own self-development for the benefit of his family unit. The reality for the Applicant is that there has been no reciprocity from his side.
[17]Exhibit 4, Applicant’s reply, p 3 at [13].
Instead of getting on with his own life here, he embarked on a spree of serious criminal activity that is completely at odds with the opportunities open to him in a humanitarian country such as Australia. Any country can only be fair in its treatment and judgment of people for so long. After that, responsibility for offences committed by unauthorised arrivals seeking safe haven visas and/or bridging visas must be borne by them.
I scoured the evidence for any reliable medical or other independent expert evidence informing the hearing about the Applicant’s likelihood of re-offending. I could not find any such evidence and consider this to be a serious deficiency in the Applicant’s capacity to resist or rebut any finding about the nature of future harm he could cause, were he to re-offend.
During his evidence, the Applicant spoke of committing the offences due to symptoms of depression and anxiety. This evidence was both tepid and unconvincing verging on self-serving. It seemed a default position to which he resorted when pressed about the circumstances of his more serious offences involving domestic violence against his wife and stealing from a significantly disabled person. It seemed to me that the Applicant predicated his evidence explaining his offending on the basis that repeated references to the now familiar themes of “depression and anxiety” would somehow strike a chord with the Tribunal. They did not. None of his evidence about these asserted conditions was corroborated by any medical or other expert.
In his initial response to the Respondent’s department, he said: “I have been seeing the psychologist at BITA and have been receiving ongoing help.”[18] There is no evidence from this or any other expert in such disorders about (a) precisely what disorder had been diagnosed, (b) the prognosis for that condition, and (c) any opinion as to the Applicant’s risk profile or propensity to re-offend. It is not clear whether the asserted psychological factor(s) apparently behind the offending is/are in fact melancholia-derived or whether the Applicant’s asserted symptoms are, for example, a manifestation of some earlier trauma in his life.
[18] See Exhibit 1, p 3.
Submissions filed on his behalf record:
“The Applicant has since explained the circumstances which led him to this out-of-character behaviour. He has advised that he was suffering from depression and he was extremely stressed about finances because he was unable to work due to his status in Australia. He felt compelled to commit these crimes simply so he could afford to buy necessities for his wife and himself.”[19]
“The Applicant was placed in Brisbane Immigration Transit Accommodation centre (“BITA”) where he currently attends psychological counselling. The Applicant has since demonstrated good behaviour during his time in jail and detention.”[20]
[19] See Exhibit 2, page 4, [24] and [25].
[20] Ibid at [25].
Once again, these uncorroborated submissions can only be allocated the status of bare assertions. There is no evidence going to a clinical, diagnostic or forensic explanation as to how the Applicant’s asserted depression and stress symptoms manifested into a compulsion to commit the offences now appearing in his criminal history. Similarly, there is nothing from the psychologist (or other expert) to explain the mode and frequency of any treatment or any predictive opinion as to what the asserted symptoms may trigger were the Applicant to be returned to the community.
I think the Respondent’s contention about the Applicant’s misplaced reliance on the Tribunal’s comments in Johnson and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 304 (“Johnson”) is correct. That matter cannot be regarded as being on “all fours” with this matter because in Johnson the evidence upon which the Tribunal relied came from a psychologist who provided an expert and independent opinion about that Applicant’s risk profile of re-offending. Accordingly, the Tribunal in Johnson placed great weight on the psychologist’s opinion in reaching a conclusion about the Applicant’s risk of re-offending and overall risk to the community were he to be returned to that community.[21]
[21] As I did in the matter of Bhardwaj and Minister for Immigration and Border Protection [2017] AATA 86.
During his evidence, the Applicant frequently expressed remorse and shame for his conduct. He contended that he was “a new man” and would prove as much were he to be returned to the Australian community. Though I recognise this contention and its corollary - that he poses no future risk of harm - this contention is unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community, were he to re-offend, is great.
The Likelihood of Re-offending, or Continuing to Engage in Other Serious Conduct
The Applicant contends that he has apparently undertaken a course of psychological treatment while in jail and detention. At the risk of repeating myself, there is little or no evidence about how that treatment has or will contribute to lowering the risk profile of the Applicant for re-offending. The consequential difficulty for a decision maker is that the only reference point for making any assessment of the likelihood of re-offending can only be the history of offending itself. There is nothing else – apart from submissions made by or on the Applicant’s behalf – upon which to base that assessment.
There was a further contention to the effect that the Applicant has been of good conduct and behaviour while in jail and detention. Be that as it may, I do not think that a decision maker can reach a concluded view about the likelihood of re-offending simply because an applicant has been of good behaviour in the closed and sanitised environment of a custodial situation. It is, in my view, a dangerous and ill-advised conclusion to think that because he has been of good behaviour in custody, he will automatically be of good behaviour back in the Australian community.
At the hearing, I sought to ascertain some type of rationale for the Applicant’s offending, in particular, his domestic violence history with his wife. I sought to do so because there was an absence of other elements – such as substance abuse – giving rise to the offending. There was no concession from the Applicant that perhaps his cultural experience of interpersonal relationships in another country might just have conditioned or influenced his behaviour towards his wife. He rejected any such suggestion and reverted to his unproven position that “depression and anxiety” issues are the root cause of his offending history.
As outlined earlier, I have difficulty in accepting his evidence in this regard. There is, in my view, simply too great a deficiency between the nature, extent and seriousness of his offending with any independently formed medical (or other) opinion that melancholia - derived symptoms are the main cause of his offending. Further, there is nothing before me in the form of expert evidence explaining how these symptoms are now under control to the extent that he poses little or no risk to the community.
The state of the evidence is suggestive of the Applicant not having addressed the issues that he says have caused him to commit serious offences. Were he to be released back into the community at this juncture, I have a firmly held apprehension that he would be at real risk of offending and, most likely, of causing serious harm either to those in his immediate circle or even beyond that.
There are four key characteristics of the Applicant’s criminal history and conduct to date that further point towards the likelihood of his reoffending.
First, as briefly mentioned above, his offending period was for a “spike” of eight months. The important point is this: the “spike” cannot be construed as a momentary lapse of self-control or judgment. The intensity of the “spike” – demonstrated by the circa 50 committed offences and the 48 months of custodial sentences – is, to my mind, so notable and significant that I have grave difficulty in being convinced that it will not reoccur. Put another way, even if one quarter of his serious offending were repeated back in the Australian community, it can surely not be denied that the risk that he would represent to the community would indeed be great.
Second, the Applicant’s history of a refusal to accept and respect lawful authority and/or a privilege afforded to him by the Australian community is, to my mind, of particular concern. In considering matters like this, I have regard to the nature and severity of the offending. When the offending involves challenges to lawful authority and a refusal to acknowledge such authority, the offending becomes, to my mind, of a nature that is more likely to be repeated. This is because the offender often does not fear retribution by lawful authority for his offending. In those circumstances, the risk of reoffending is higher. I also find it surprising that the Applicant refuses to respect lawful authority and/or takes for granted privileges bestowed upon him by the very country in which he now seeks to make a permanent home.
Third, it should be noted that the Applicant talks about taking positive steps to rehabilitate himself (in the form of seeing a psychologist) and that he is a changed man. He referred in his evidence to certain psychological issues in his life involving depression and anxiety. However, there is no probative medical evidence of these psychological symptoms and to what extent, if any, they may have contributed to his offending. I have misgivings about these types of factors raised, as it were, at “death’s door”, when applications like this come before tribunals or courts for determination. These symptoms must surely have existed prior to or during his “spike” of offending. One wonders why he didn’t seek treatment for those symptoms then, and instead, allowed those symptoms to (apparently) cause him to commit serious offences.
Finally, the Applicant sought to rely on a position that much of his offending was something that occurred “in the past” and that he had turned a corner and was otherwise ready to make a positive contribution to the community. He sought to give the impression that all past problems and trigger points had been resolved. There is a dearth of any probative medical or other evidence to convince me that this is the case.
In consideration of the above factors, I determine that primary consideration A weighs heavily in favour of refusing the Applicant’s visa.
Primary Consideration B: The Best Interests of Minor Children in Australia
It is common ground that there are no minor children of the Applicant in Australia that could be affected by the refusal of his visa.
In her evidence, his wife spoke of her children of a previous marriage. They are now 21 and 22 years of age respectively.[22] There was no evidence the Applicant played a pivotal (or any) part in their lives.
[22] See Exhibit 6, G documents, p 118.
Therefore, I attach no weight to this primary consideration.
Primary Consideration C: The Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 11.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Additionally, whether the Australian community would expect that someone with his character concerns and history of offending should not be granted a visa. I must also have regard to the Government’s views in this respect.
The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 11.3(1) of the Direction guides a decision-maker to exercise the discretion to refuse a visa as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Taking into account the serious nature and extent of his offending for which he has been charged and convicted, there is, to my mind, little or no doubt that the Australian community would expect that this Applicant should not hold a visa.
I find his domestic violence history to be quite serious and inexcusable. I note, for example, that for his domestic violence offending, the Applicant was sentenced to a total of 18 months imprisonment for three separate contraventions of a domestic violence order.[23] I accept the Respondent’s contention that the nature of the contraventions (especially the one that occurred on 15 March 2016) clearly reflects the seriousness of the domestic violence offending.
[23]
Of similar concern is the Applicant’s failure to respect both the personal and property rights of others. There is the particularly dreadful theft from the disabled victim which is, frankly, beyond the pale. This theme of offending also has its tentacles in offending involving the forced entry, by way of breaking and entering other people’s personal spaces.
There is a clear difficulty in this Applicant to distinguish right from wrong when faced with financial difficulty. This is evident from the nature and extent of his fraudulent offending by way of unlawful use of credit cards.[24] There are two elements to my concern here: (1) the abovementioned inability to make the right judgement call in terms of unlawfully using a credit card, and (2) the perhaps unwitting but undeniably gradual increase in the sophistication of the offending. The concern with the latter element is that were this gradual sophistication to further evolve, the losses suffered by innocent third parties would commensurately increase.
[24] See Exhibit 1.
His asserted issues with depression and anxiety remain undiagnosed and unresolved. I am not convinced that these factors are behind his offending. On the other hand, there is nothing telling me that they are not, aside from the Applicant’s assurances that he is a changed man. This cannot possibly reach the threshold of convincing a decision maker of the safety of releasing this Applicant back into the community. In these circumstances, I therefore cannot believe the Australian community would expect that someone with (1) a serious criminal record like the Applicant’s, and (2) his unresolved (asserted) psychiatric/psychological issues, would be granted or allowed to keep his visa.
Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of exercising the discretion to refuse the Applicant’s visa.
Other Considerations
I turn now to the other considerations listed at paragraph 12 of the Direction.[25] I have considered each of the four stipulated sub-paragraphs (a), (b), (c), and (d).
[25] Direction No 65, paragraph 12(1).
With reference to other consideration (a) – International Non-refoulement obligations –The Applicant came to Australia by boat as an asylum seeker. He asserts that in the event of his deportation he would suffer “… from discrimination and inhumane or degrading treatment because [he is] from the minority Arab ethnicity in Iran.”[26] Be that as it may, there is little or no evidence of any probative value – apart from this generalised evidence – that he would be at real risk of harm were he to be returned to Iran.
[26] See Exhibit 1, page 4.
The Applicant has previously applied for and been refused a safe haven enterprise visa (“SHEV”) on 31 July 2017. That decision has been under fast track review with the Immigration Assessment Authority (“IAA”), pursuant to the provisions in s 473CA of the Act. I think the Respondent’s contention is fairly made: the Applicant’s protection related or SHEV visa has been refused, and consequently, the presumption must be that Australia does not owe this Applicant any non-refoulement obligations.
I therefore agree with the Respondent’s contention about this other consideration: even though the Applicant asserts he is at risk of harm in Iran, there is insufficient evidence to substantiate that claim. The circumstances of this case and the nature of his offending history lead me to the conclusion that the primary considerations (A and C) outweigh any assertion by the Applicant that this country owes him non-refoulement obligations.

With reference to other consideration (b) – Impact on family members – the Applicant has been in Australia on a continuous basis since 2013. Shortly after his arrival in Brisbane, he met and then about a year later, married his wife. There is an acknowledgement by the Respondent that the wife suffers from a number of physical and mental health conditions. Be that as it may, I found the wife’s evidence both unconvincing and, ultimately, confusing. While not readily volunteering to do so, the wife acknowledged under cross-examination that a real prospect for her – were the Applicant’s visa(s) to be refused – could well be that she would relocate with the Applicant offshore, possibly to Iran, but possibly also to another destination such as Greece.
In her evidence, the Applicant’s wife also sought to explain away their marital difficulties. She gave unconvincing and unclear evidence about the nature of the relationship counselling she and/or the Applicant has undertaken.[27] The basic tenor of her evidence was that all would be well upon the Applicant’s release from detention and they would simply get on with the rest of their lives. There is no evidence from any counsellor particularising any outcome(s) from that counselling, what issues were identified and what prospects the counsellor thinks there may be for a harmonious resumption of the domestic relationship between her and the Applicant.
[27] See Exhibit 6, G15, p 108 – Letter from Logan Women’s, which confirms that the Applicant’s wife has been attending counselling at the Logan Women’s Health and Wellbeing Centre Ltd, but does not expand on the nature and outcome of those sessions.
The Applicant talks about attending certain counselling sessions whilst in custody and immigration detention at BITA. Commendable though that may be, this is his self-reporting evidence and there is no objective expert evidence to substantiate what, if any, treatment has been undertaken and how such treatment has ameliorated the asserted symptoms giving rise to his offending. Similarly, there is no evidence that the Applicant and his wife have received joint relationship counselling to deal with the domestic issues that feature so prominently in his criminal history.
I cannot safely rely on the evidence of the wife because of a further complicating factor. It appears the wife played a role, in fact was conjointly charged, in relation to (at least) 28 of the Applicant’s charges of stealing and fraud committed on 4 April 2016.[28] One wonders what type of positive influence she could play in his life, such as to cause him to comply with the laws of this country in circumstances where she is an Australian citizen and should thus be familiar with the laws of this country and the standards of conduct they mandate.
[28] See Exhibit 5, Respondent’s ‘SFIC’, at [30].
As a final point on this other consideration, I agree with the Respondent’s contention that the Applicant’s reliance on Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586 (“Wang”), is misplaced. That matter is not on “all fours” with the present matter. In Wang, there was evidence from a consultant psychiatrist about the psychiatric effects of the separation between that Applicant and his partner. As mentioned earlier and to repeat, the Tribunal does not have the benefit of such evidence here. Perhaps of even more significant difference compared to this application, the Tribunal in Wang formed the view that the primary considerations in that matter were “not in any way strongly against the Applicant, and might perhaps fairly be described as neutral.”[29]
[29] Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586 at [14(j)] per DP Block.
There is no evidence that the wife’s two adult children would suffer any hardship if the Applicant’s visa was refused. As I recall the evidence, neither of the children live at home and seem to be independent.
Having regard to the totality of the abovementioned evidence I consider this other consideration is of neutral weight.
With reference to other consideration (c) - Impact on victims – it is clear from the evidence that the Applicant has repeatedly committed acts of violence against his wife that have been viewed by courts as serious. Were the Applicant to reoffend, it is conceivable that the primary victim of his violent offending – his wife - would be disproportionately likely to be his victim once again. Given, as I have discussed above, the likelihood that the Applicant will reoffend, consideration should be given to the ongoing risk of harm posed by the Applicant to his wife were he to remain in Australia.
I note there are other victims of the Applicant’s offending – perhaps, most notably, the unfortunate disabled person who was forcibly relieved of his/her wallet. There is no specific evidence in relation to the risk the Applicant poses to these other victims were he to remain in Australia. Be that as it may, my finding is that this other consideration does not assist the Applicant.
With reference to other consideration (d) – Impact on Australian business interests – there is no suggestion that any Australian business interests would be impacted if the Applicant’s visa was refused. This particular other consideration is of no weight to my consideration.
CONCLUSION
The Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501(1) of the Act to refuse the visa, I have had regard to the considerations referred to in Direction No. 65. Primary considerations A and C weigh heavily in favour of refusal. I have assigned no weight to Primary Consideration B. I acknowledge that minimal weight (at best) should be allocated to some of the ‘Other considerations’ but not to the extent it outweighs the primary and other considerations which favour refusal.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.........................[sgd]............................
Associate
Dated: 12 October 2017

Date of hearing: Tuesday, 3 October 2017

Advocate for the Applicant: E. Azadi, Arc Migration

Solicitors for the Respondent: B. Dube, Sparke Helmore Lawyers

Note: He received a sentence of 6 months imprisonment (concurrent) for offences that included his contravention of the DVO on 15 October 2015 and also the contravention of the DVO on 4 April 2016. Further, he was sentenced to 12 months imprisonment (concurrent) for the offence of contravention of the DVO on

15 March 2016.

Date of hearing:	Tuesday, 3 October 2017
Advocate for the Applicant:	E. Azadi, Arc Migration
Solicitors for the Respondent:	B. Dube, Sparke Helmore Lawyers