LVFG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 1109

LVFG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1109 (9 May 2023)
Division:GENERAL DIVISION
File Number: 2023/0570
Re:LVFG
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 May 2023
Place:Perth

The following decision was made and given to the parties on 24 April 2023 with a note that written reasons would be provided within a reasonable time:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 January 2023, is affirmed.

These are the written reasons for my decision.
...........[Sgd]............................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of a delegate of the Respondent to refuse to grant a visa under s 501(1) of the Migration Act 1958 (Cth) – whether the Applicant passes the character test – whether discretion should be exercised not to refuse the grant of the Applicant’s Visa under s 501(1) of the Migration Act – substantial criminal record – serious driving offences and drug possession offences – Applicant is a 45-year-old citizen of Iran who arrived in Australia in 2013 – Ministerial Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor daughter and stepchildren – minor daughter and three stepchildren are in the care of the Department of Child Protection – expectations of the Australian community – legal consequences of the decision – a protection finding has been made with respect to the Applicant – extent of impediments if removed – Applicant unable to be removed and faces indefinite detention – Tribunal finds that it should exercise discretion under s 501(1) of the Migration Act to refuse to grant the Applicant the Visa – Reviewable Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 5(1), 5M, 36(1C), 36(2)(a), 36A(1)(a), 48A, 48B, 195A, 197AB, 197D, 499, 499(1), 499(2A), 500(6B), 500(6L), 501(1), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7A), 501G(1)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
CZCV and Minister of Home Affairs [2019] AATA 91
JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 26
Minister for Home Affairs v HSKJ [2018] FCAFC 217
MJNN and Minister for Home Affairs [2019] AATA 3205
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Zaya and Minister for Immigration and Border Protection [2017] AATA 366
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services 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) paras 4(1), 5.1, 5.1(1), 5.1(2), 5.1(4), 5.2, 5.2(4), 5.2(5), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1.1, 9.1.1(1), 9.1.1(2), 9.1.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
Transport Accident Commission, ‘Drug driving’ (Web Page) < FOR DECISION
Senior Member Dr M Evans-Bonner
9 May 2023
BACKGROUND

The Applicant is a 45-year-old man who was born in Iran. He came to Australia on 25 March 2013 as an unauthorised maritime arrival when he was 35 years old (R1/203).
After his arrival the Applicant held a temporary humanitarian visa and was subsequently granted bridging visas (R1/204).
The Applicant applied for a Safe Haven Enterprise Visa (SHEV) subclass 790 Visa (Visa) on 27 June 2017 (R1/70-121).
On 28 January 2022 the Applicant was convicted of “dangerous driving (to escape pursuit by police)” for which he was sentenced to a term of eight months’ concurrent imprisonment and a two-year driving disqualification; and “no authority to drive (disqualified)” for which he was sentenced to a concurrent term of four months’ imprisonment and a nine-month cumulative driving disqualification. I will refer to these offences as the Refusal Offences. He was also convicted of “failed to give driver identity information” for which he received a $1000 fine (R2/1).
On 7 October 2022, the Applicant was given a notice of intention to consider refusal of the Visa under s 501(1) of the Migration Act 1958 (Cth) (Migration Act). The notice informed the Applicant that consideration was being given to refusing the Visa on character grounds under s 501(1) of the Migration Act and invited him to comment (R1/155-159). The Applicant made submissions and provided documentation in support of the Visa not being refused including a personal circumstances form (R1/160-202).
However, on 17 January 2023, a delegate of the Minister exercised discretion under s 501(1) of the Migration Act to refuse to grant the Applicant’s Visa (R1/4). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 31 January 2023 by email (R1/235-237).
On the same day, 31 January 2023, the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (R1/1-3). Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 31 January 2023, meaning that I was required to hand down a decision on or before 25 April 2023. As that day was a public holiday, I handed down the decision on 24 April 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, should I exercise discretion under s 501(1) of the Migration Act to refuse to grant the Visa to the Applicant.
THE HEARING AND THE EVIDENCE
The hearing of this application was held in person on 6 April 2023.
The Applicant was represented by Ms J Angel of Estrin Saul Lawyers and Migration Specialists. I would like to sincerely thank Ms Angel for appearing pro-bono in this application. I acknowledge that Ms Angel was instructed at short notice, and I appreciated the quality of her submissions which were not compromised by this short time frame.
The Respondent was represented by Mr A Gerrard of The Australian Government Solicitor.
The Applicant gave evidence at the hearing. His partner, who I will refer to as “M”, gave evidence at the hearing by telephone. M is the mother of the Applicant’s 21-month-old minor daughter, who I will refer to as “D”.
I admitted the following documents into evidence at the hearing:
(a)Applicant’s bundle of evidence comprising 14 pages (Exhibit A1);
(b)section 501 G-Documents, labelled G1 to G14, comprising 242 pages (Exhibit R1); and
(c)Supplementary Bundle, numbered ST1 to ST4, comprising 289 pages (Exhibit R2).
As the Applicant was initially unrepresented, the Respondent filed a Statement of Facts, Issues and Contentions (SFIC) dated 10 March 2023 first which attached a table of the Applicant’s offending and periods of incarceration. The Applicant filed a SFIC dated 3 April 2023, prepared by his legal representative after she was instructed.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(1) of the Migration Act provides that:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Subsection 501(7A) of the Migration Act concerns concurrent sentences. It provides:
(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example:A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (8 March 2021).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(1), (2) and (4) being relevant to the current application:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
…
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to refuse … a non-citizen’s visa under section 501 …”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). As I mentioned in the “Background” section above, on 28 January 2022 the Applicant was sentenced to a term of eight months’ concurrent imprisonment for “dangerous driving (to escape pursuit by police)” and a concurrent term of four months’ imprisonment for “no authority to drive (disqualified)”. Together, these terms total 12 months imprisonment (s 501(7A) of the Migration Act).
The Applicant accepts that he fails the character test (Applicant’s SFIC para [23]) but argued that discretion should be exercised so that his application for the Visa is not refused under s 501(1) of the Migration Act (transcript/14). To determine whether this discretion should be exercised, I will now consider the relevant primary and other considerations in Direction No 99.
SHOULD THE TRIBUNAL EXERCISE THE DISCRETION IN S 501(1) TO REFUSE TO GRANT THE VISA?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)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.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

The following table, reproduced by the Respondent as Attachment A to its SFIC, helpfully sets out the Applicant’s offending history. I have omitted the footnotes from this table. I have also added the penalties imposed by the Courts:

Offence Date	Offence	Days since previous offence/release	Penalties imposed by the Courts
30-12-2015	No authority to drive (fines suspended)	Fine $200
30-06-2016	No authority to drive (fines suspended)	183	Fine $300
02-09-2016	Without lawful excuse trespassed on a place	64	Fine $400
	Possessed drug paraphernalia in or on which there was a prohibited drug or plant		Fine $200
	Possessed a controlled weapon		Fine $100
13-09-2016	Without lawful excuse trespassed on a place	11	Fine $200 Spent conviction
05-10-2016	Possess a prohibited drug (Methylamphetamine)	22	Fine $300
	Used an unlicensed vehicle		Fine $300
	No authority to drive (fines suspended)		Fine $500
	Drove a vehicle contrary to a defect notice		Fine $300
	Provided false or misleading personal details		Fine $800
	Possessed drug paraphernalia in or on which there was a prohibited drug or plant		Fine $200
18-10-2016	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	13	Fine $200
18-10-2016	Possess a prohibited drug (Cannabis)	13	Fine $400
25-10-2016	No authority to drive (fines suspended)	8	Fine $300
25-10-2016	Drove a vehicle contrary to a defect notice	8	Fine $600
26-10-2016	Possess a Prohibited Drug (Methylamphetamine)	1	Fine $500
04-11-2016	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	9	Fine $300
07-11-2016	Without lawful excuse trespassed on a place	3	Fine $2000 (global)
11-11-2016	Carried (possessed) an article with intent to cause fear that someone	4	Fine $400
	Possession of stolen or unlawfully obtained property		Fine $2000 (global)
	Possessed drug paraphernalia in or on which there was a prohibited drug or plant		Fine $2000 (global)
21-11-2016	Trespass	10	Fine $2000 (global)
22-11-2016	Possess Drug Paraphernalia containing prohibited drug/plant	1	Fine $2000 (global)
	Trespass		Fine $2000 (global)
	No authority to drive-Never held Aust licence & is disqualified		Fine $400 Motor driver’s license (MDL) disqualified 9 months – cumulative
10-12-2016	Without lawful excuse trespassed on a place	18	Fine $2000 (global)
22-12-2016	Breach of Bail (Fail to appear soon after)	12	Fine $2000 (global)
02-01-2017	Trespass	11	Fine $2000 (global)
02-01-2017	Possess a prohibited drug (Methylamphetamine)	11	Fine $2000 (global)
10-01-2017	Breach of Bail (Fail to appear soon after)	8	Fine $2000 (global)
16-02-2017	Breach of Bail Undertaking	6	Fine $2000 (global)
22-02-2017	Possess a prohibited drug (Methylamphetamine)	6	Fine $2000 (global)
23-02-2017- 27-02-2017	Applicant incarcerated
01-10-2017	Without lawful excuse trespassed on a place	216	Fine $600
10-11-2017	No authority to drive-Never held Aust licence & is disqualified	40	Fine $1000 MDL disqualified 9 months – cumulative
	Driver failed to stop (circumstance of aggravation)		Imprisonment 3 months – concurrent MDL disqualified 2 years – concurrent
	Aggravated reckless driving pursuit		Imprisonment 6 months, 1 day – concurrent MDL disqualified 2 years – concurrent
09-06-2018	Possess a Prohibited Drug (Amphetamine)	211	Fine $500
	Possessed drug paraphernalia in or on which there was a prohibited drug or plant		Fine $700 (global)
	Possessed drug paraphernalia in or on which there was a prohibited drug or plant		Fine $200
22-06-2018	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	13	Fine $700 (global)
22-06-2018	Breach of protective bail conditions	13	Fine $250
31-08-2018	Breach of Bail Undertaking	70	Fine $250
09-11-2018	No authority to drive - suspended	70	Fine $100 MDL disqualified 9 months – cumulative
	Drove or permitted vehicle with false plate to be driven		Fine $100
	Steal Motor Vehicle		Imprisonment 2 months – concurrent
30-11-2018	Possessed drug paraphernalia in or on which there was a prohibited drug	21	Fine $250
15-12-2018	Without lawful excuse trespassed on a place	15	Fine $400
31-12-2018	Breach of Bail Undertaking	16	Fine $250
23-04-2019	Possess a prohibited drug (Methylamphetamine)	113	Fine $250
	Possessed drug paraphernalia in or on which there was a prohibited drug		Fine $250
	Possessed a prohibited weapon		Fine $250
24-04-2019 – 24-10-2019	Applicant incarcerated
08-11-2019	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	15	Fine $600 (global)
	Possess a prohibited drug (Cannabis)		Fine $600 (global)
	Possess a prohibited drug (Methylamphetamine)		Fine $600 (global)
27-11-2019	No Authority to Drive never held disqualified by Disqualification Notice (2^nd or Subsequent Offence)	19	Fine $1100 MDL disqualified 9 months – cumulative
27-11-2019	Driving with prescribed illicit drug	19	Fine $300 MDL disqualified 3 months – concurrent
09-12-2020	No authority to drive (disqualified)	348	Imprisonment 4 months – concurrent MDL disqualified 9 months – cumulative
09-12-2020	Dangerous driving (to escape pursuit by police)	348	Imprisonment 8 months – concurrent MDL disqualified 2 years – concurrent
23-01-2021	No authority to drive	45	Fine $1500 MDL disqualified 9 months – cumulative
	Possessed drug paraphernalia in or on which there was a prohibited drug or plant		Fine $500 Order for Destruction
	Possess a prohibited drug (Methylamphetamine)		Fine $800 Order for Destruction
04-03-2021	Failed to give driver identity information	40	Fine $1000 (global)
15-04-2021	Breach of Bail Undertaking	42	Fine $500
02-08-2021	Possess Drug Paraphernalia containing prohibited drug/plant	109	Fine $1200 Order for Destruction
02-08-2021	Possess a prohibited drug (Methylamphetamine)	109	Fine $1200 Order for Destruction
03-08-2021 – 15-09-2021	Applicant incarcerated
25-01-2022 to present	Applicant incarcerated and in immigration detention

As can be seen from this table, the Applicant committed 66 driving and criminal offences between 30 December 2015 and 2 August 2021. His offending can be categorised as follows:
(a)19 driving offences;
(b)nine trespass offences;
(c)25 offences involving drug possession (methylamphetamine, amphetamine, cannabis) or possession of drug paraphernalia on which there was a prohibited drug or plant;
(d)three weapons possession offences;
(e)seven breaches of bail and bail undertakings;
(f)two dishonesty offences being “possession of stolen or unlawfully obtained property” and “steal motor vehicle”; and
(g)an offence for “providing false or misleading personal details” to police.
The Applicant’s offences do not fall within the types of crimes or conduct that Direction No 99 states should be “viewed very seriously” (para 8.1.1(1)(a) of Direction No 99), nor does it fall within any of the types of other “serious” conduct stated in paragraph 8.1.1(1)(b) of Direction No 99.
Most of the Applicant’s offences, when considered individually, do not fall within the serious or very serious category. I would categories offences such as trespass, breaches of bail, dishonesty offences and providing false details to police as being at the lower end of the scale, and weapons possession as being of a moderate level of seriousness.
However, paragraph 8.1.1(1)(a) and (b) of Direction No 99 do not limit the range of offences that can be regarded as very serious or serious. As I have mentioned, the Applicant has 19 driving offences.
The Tribunal has often regarded driving/ traffic related offences to be of a very serious nature. I summarised some of these decisions in JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 26):
50. … the Tribunal has often regarded driving offences to be of a very serious nature.
51. For example, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 (Apire) Member Webb stated at [16]:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection [[2014] AATA 89] at [7] – laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values. ...
(Footnote omitted.)
52. In a decision concerning a citizenship application, Zaya and Minister for Immigration and Border Protection [2017] AATA 366 (Zaya) at [54], Deputy President Kendall (now Judge Kendall) referred to the serious consequences of driving under the influence. His Honour cited the above passage from Apire and stated:
The Tribunal agrees with this assessment. There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.
53. In Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 (Bartlett) Senior Member Tavoularis also noted the serious nature and adverse consequences of driving offences at [43]-[45]:
There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Footnotes omitted.)
54. In MJNN and Minister for Home Affairs [2019] AATA 3205 (MJNN), this Tribunal applied the above comments of Member Webb and Senior Member Tavoularis and stated at [55]:
The Applicant’s record of repeat driving offences tends to indicate an [in]ability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious.
In summary, road traffic laws are in place to protect the community, including innocent road users and pedestrians, from harm. There is significant potential to lose control of a motor vehicle whilst driving under the influence of drugs, or at the very least for a driver’s judgment and reflexes to be impaired. This can result in road traffic accidents, which can have very serious consequences for other innocent road users and pedestrians, including injury or death.
The Applicant appeared in the Magistrate’s Court on 28 January 2022 and was sentenced for “dangerous driving (to escape pursuit by police)” which occurred on 9 December 2020. His pregnant partner was in the car, and he was driving under the influence of methylamphetamine (transcript/47-48). Also, at the time the Applicant did not have an Australian drivers’ licence (having never held one) and had also been disqualified from driving, which resulted in the “no authority to drive (disqualified)” conviction. The sentencing Magistrate described the offending as follows (R1/28):
Having noticed [the Applicant’s] car, they [police] put on their lights initially, then their sirens and you proceed to drive in a dangerous manner to escape their attention and being stopped by police. That involved you going through a school zone at an excessive speed of 70 kilometres an hour. This is at 3.15pm when there were children present on the roadside making their way out of the school. You went around a roundabout in the incorrect direction which caused some concern, obviously, for other road users and they had to change their method of driving to avoid you and you also proceeded through stop signs without stopping, obviously presenting a danger to other road users along with yourself.
Fortunately, as a result of this driving behaviour, there was no serious incident or accidents that occurred, but the pursuit was called off by the police because of the danger – dangerous nature of your driving and the risk to the public. …
As the sentencing Magistrate indicated, it was fortunate that no one (such as other road users and pedestrians including children in the school zone) was injured or killed.
The offences of “aggravated reckless driving pursuit” and “driver failed to stop (circumstance of aggravation)” committed on 10 November 2017 involved police trying to stop the Applicant during peak hour. The Applicant accelerated at speed towards a traffic intersection, had to brake heavily to avoid a collision, and then crossed a solid white line to drive on the incorrect side of the road including being on the wrong side of a traffic island and driving into the intersection on the wrong side of the road (R2/84; transcript/32-33).
I also note the Applicant’s offences for “driving with prescribed illicit drug” and “no authority to drive never held & disqualified by Disqualification Notice” committed on 27 November 2019. Although the Applicant received total fines of $1400 and disqualifications for a total of 12 months, I nevertheless find driving under the influence of drugs whilst unlicensed to be serious because driving whilst impaired increases the chances of the driver having an accident and injuring innocent members of the public.
I now turn to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 99). The Applicant has primarily received fines, as well as some disqualifications. This indicates that, when viewed individually, much of his offending could be categorised as being at the less serious end of the scale. However, the Applicant has also been sentenced to the following terms of imprisonment:
(a)A six month and one day concurrent term of imprisonment for the “aggravated reckless driving pursuit” offence of 10 November 2017, and a three-month concurrent term of imprisonment for the “driver failed to stop (circumstance of aggravation)” offence of the same date.
(b)With respect to the Refusal Offences of 9 December 2020, a four-month concurrent term of imprisonment for the “no authority to drive (disqualified)” offence and an eight-month concurrent term of imprisonment for the “dangerous driving (to escape pursuit by police)” offence.
In my view, these sentences indicate that the offences were serious. Sentences of imprisonment are the last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]) and sentencing the Applicant to imprisonment for these offences shows that the Court regarded the offending as being serious enough to warrant a custodial sentence. The seriousness of the offending, including the risk to innocent members of the public, is reflected in the following remarks of the Deputy Chief Magistrate who sentenced the Applicant for the Refusal Offences on 28 January 2022 (R1/28-29):
Fortunately, as a result of this driving behaviour, there was no serious incident or accidents that occurred, but the pursuit was called off by the police because of the danger – dangerous nature of your driving and the risk to the public. In these circumstances, it’s my view, as I’ve indicated earlier, that a period of imprisonment is the only appropriate method of dealing with this. I’ve given some consideration to whether that should be suspended, but it is, in my view, that you have continued to use the road and motor vehicles with total disregard for the system and the penalties that apply and it is my view that this should attract an immediate term of imprisonment.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99). As I mentioned above, the Applicant has committed 66 driving and criminal offences over an approximate six-year period between 30 December 2015 and 2 August 2021. I do, however, acknowledge that the Applicant did not commit any offences for most of 2020, with the Refusal Offences being committed on 9 December 2020. His offences can therefore be said to be numerous and frequent. Indeed, his driving offences have been so frequent that he has been banned from driving for approximately eight of the ten years that he has lived here. The Applicant has committed similar offences repeatedly and has not been deterred by fines and driving disqualifications (despite his never having held an Australian drivers’ licence). There is a trend of increasing seriousness in his driving offences due to their repeat nature, the length of time he has been banned and the fact that the 10 November 2017 and the Refusal Offences of 9 December 2020 were more serious, as reflected by the sentences of imprisonment imposed.

There is a cumulative effect of repeat offending given the number of offences, the substantial amount of the fines imposed, disqualifications imposed, numerous court attendances, breaches of bail and the two sentences of imprisonment imposed. This is likely to have imposed a burden on the resources of police, the courts, and corrective services (para 8.1.1(1)(e) of Direction No 99).
I now turn to whether the Applicant has provided false or misleading information to the Department of Home Affairs (Department), including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). In his application for the Visa, the Applicant ticked the box marked “no” in response to a question as to whether he had “been convicted of an offence in any country”. At that time, 23 June 2017, the Applicant had been convicted of 31 offences. I do note, however, that he did disclose having “been charged with an offence that is currently awaiting legal action” and that he “had any outstanding debts to the Australian Government or any public authority in Australia” (R1/76).
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant previously held a bridging visa that was cancelled on 27 February 2017 because of his offending (R1/50 and 58). I find that the notice of intention to consider cancellation and the cancellation decision constitute written warnings. His failure to disclose convictions to the Department in his Visa application also weighs against him. Also, at the hearing the Applicant agreed that after this cancellation he knew that committing further offences could lead to visa cancellation (transcript/40). Despite the knowledge that offending could compromise his visa status, the Applicant committed numerous offences after that cancellation, including the 10 November 2017 offences approximately eight and a half months after the cancellation of his bridging visa.
The Applicant’s offending did not occur in another country and so paragraph 8.1.1(1)(h) of Direction No 99 is not relevant.
In summary, although some of the Applicant’s offences, when viewed individually, can be regarded as having a low to moderate degree of seriousness, he has also committed serious driving offences, including the Refusal Offences, which could have resulted in tragic consequences. The Applicant’s offending and conduct is frequent and there is a slight trend of increasing seriousness. Given the number and frequency of offending and range of penalties including fines, disqualifications and sentences of imprisonment, there is a cumulative effect of his repeat offending. He has also had a previous bridging visa cancellation, and yet continued to offend.
For completeness, I also note that on 20 May 2022, a delegate of the Minister assessed whether the Applicant engaged the exemption in s 36(1C) of the Migration Act (R1/229-234). The relevant part provides:
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
A “particularly serious crime” is defined in s 5M of the Migration Act to include:
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; …
Subsection 5(1) of the Migration Act defines a “serious Australian offence” as:
… an offence against a law in force in Australia, where:
(a)      the offence:
(i)        involves violence against a person; or
(ii)       is a serious drug offence; or
(iii)      involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)      the offence is punishable by:
(i)        imprisonment for life; or
(ii)      imprisonment for a fixed term of not less than 3 years; or
(iii)      imprisonment for a maximum term of not less than 3 years.
The delegate concluded that the Applicant’s offending did not meet this definition and concluded that the Applicant had not been convicted by final judgment of a particularly serious crime. In my view, this assessment does not alter the conclusions I have reached above concerning the seriousness of the Applicant’s offending because the s 36(1C) definitions and references to seriousness are in a different statutory context to the guidance that I am given by Direction No 99.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly in favour of discretion being exercised to refuse to grant the Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
If the Applicant was to commit further driving offences, the consequences could be potentially very serious, and even fatal. A primary purpose of road traffic and driving laws is the protection of road users. For example, prohibitions against driving whilst unlicensed exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against driving under the influence of drugs exist to ensure that drivers are not unsafe to themselves and others by driving when they are impaired which can increase the risk of road traffic accidents occurring. The Respondent cited (Respondent’s SFIC, para [34]) the Transport Accident Commission website where it is stated that: “In the last five years approximately 41% of all drivers and motorcyclists killed who were tested, had drugs in their system, with cannabis and stimulants most commonly detected”. Dangerous driving offences, including driving dangerously to escape police, can result in catastrophic consequences. The harms of these types of driving and traffic offending include fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users, pedestrians and their families.
The nature of the harm if the Applicant were to commit further drug possession offences is varied. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. With respect to the impact on families, the Applicant’s drug use (and that of his partner) resulted in his infant daughter being removed from their care shortly after her birth.
The nature of harm if the Applicant were to commit further general offences (for example breaches of bail, weapons possession, or property related offences such as possessing stolen property or trespass) is varied and includes burdening the court system, potential physical injury or psychological harm to members of the Australian community and financial harms such as financial detriment, and indirectly contributing to increased insurance premiums.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 99).
As I have detailed above, the Applicant has a significant criminal history. The number and frequency of the offences, including many similar offences and repeat driving offences, suggest a likelihood that the Applicant will commit further offences in the future. He has not been deterred by numerous fines and driving disqualifications and his numerous breaches of bail are also indicative of a disregard for lawful authority. After he was in prison for five days between 23 February 2017 and 27 February 2017, he did not reoffend for 216 days. However, after his sentence of imprisonment from 24 April 2019 to 24 October 2019, he was not deterred from offending. He relapsed to drug use and committed drug offences within 15 days of release, as well as driving offences (including driving under the influence of drugs) within 19 days of release. Also, the Applicant committed numerous further offences after his bridging visa was cancelled on 27 February 2017, despite being aware that offending could impact his visa status. He has seven breaches of bail and bail undertakings which tend to suggest a disregard for lawful authority. These factors tend to suggest a likelihood of reoffending.
There is no psychological evidence before me, such as an assessment from a clinical psychologist, regarding the Applicant’s likelihood of reoffending. His parole review reports from both sentences of imprisonment (performed on 11 April 2022 and 1 August 2019) state that he was not assessed for programs in prison, and that he did not complete any voluntary programs, other than participating in a Parenting Program (R2/198; 205).
The lack of rehabilitation undertaken by the Applicant is of concern because it appears to me that he has issues with consequential thinking and drug use, particularly methylamphetamine use.
He has a long history of drug use, starting when he lived in Iran, and continuing in Australia where he committed numerous drug possession offences. He described being addicted to drugs in Iran where he used shisha, (which he thought may have been “ice”), opium, and marijuana (transcript/54). The Applicant was not certain whether particular stressful events in his life triggered his drug use. He thought that he became addicted to drugs in Iran after the death of his father. However, he was uncertain whether his drug use increased because of his father’s death, or because he was already a drug user in circumstances where drugs were readily available to him in Iran (transcript/56-57). He was also uncertain about the connection between some of the traumatic experiences he had in Iran, where he was the victim of sexual abuse in his community, and his drug use, because: “I cannot be sure about that because even before that, I have been using drugs” (transcript/61).
The Applicant also admitted to daily methylamphetamine use in Australia after his brother passed away in October 2017 (R1/202; transcript/55-56). The Applicant also used methylamphetamine with his partner in Australia, whom he started a relationship with in 2020. The Applicant’s methylamphetamine use had again developed into a daily habit when he was with his partner (transcript/45 and 58). Their mutual drug use resulted in their infant daughter being removed by the Department of Child Protection (DCP) within days of her birth in July 2021. He stated that he last used methylamphetamine in August 2021, when he was caught in possession of it. The day after that he went to prison. The Applicant described this as happening “by destiny” and as “a good thing” because it helped the Applicant and his partner to stop their drug use (transcript/63). From that time, the Applicant and his partner resolved not to use drugs so they could regain custody of their daughter.
Whatever the causes of the Applicant’s drug use, it can be concluded that he has had a significant drug addiction to methylamphetamine. I accept that the Applicant has been drug free since he went into custody in August 2021. I also formed the view that he was sincere at the hearing when he stated that he did not want to use drugs anymore, and that he has new hope for a life with his family now that he has stopped using drugs (transcript/25). The Applicant is also motivated not to use drugs because he and his partner want to regain custody of their daughter, a process which requires visits supervised by DCP and regular drug testing (A1/001 and 013, para [37]). This period of abstinence, the Applicant’s resolve not to use drugs, and his desire be a family and support his partner in regaining custody of their daughter, may provide him with motivation not to return to drug use, and not to reoffend.
I am concerned, however, at the lack of any drug rehabilitation undertaken by the Applicant in prison or in immigration detention, given his significant drug addiction over many years. I appreciate the Applicant’s evidence that he tried to do a drug and alcohol course in prison but that the waitlist was too long, and that he would like to do drug counselling when he is released, but that it is difficult to find courses in detention (A1/012, para [33]). The causes of the Applicant’s drug use also appear to me to be complex and could possibly be informed by past trauma and stressful life events. However, I do note that the Applicant was able to abstain from drugs after receiving the news that the Visa had been denied (transcript/69), although he was in the more controlled environment of immigration detention at that time. The Applicant does not have any firm plans to engage in drug rehabilitation in the community, although the process of trying to regain custody of his daughter, which involves drug testing, may assist him to remain drug free. The Applicant also feels a sense of responsibility for his partner and daughter and does not want to lose his family (transcript/63). In a written statement, the Applicant said (A1/012, [32]):
Since my offending my circumstances have changed significantly. I have never been a father before. Since I became a father I know I have a lot of responsibility now. In our culture, we have a responsibility to family. I want to be a good father and husband for my fiancée. I want a good future for myself and my family. I’m ready to start my new life and keep working on doing better.
The Applicant’s desire to be responsible for his family may provide him with motivation not to relapse to drug use and not to reoffend. However, I do note that the Refusal Offences involved the Applicant driving dangerously to escape police because he was worried that he would go to prison and that there would be no one to look after his pregnant partner who was also in the car. I discuss this below when I address consequential thinking.
I also note that the Applicant has not had any psychological treatment, such as counselling, for the past trauma that he experienced in Iran as a victim of sexual abuse. Although, as I have said, the causes of the Applicant’s drug use appear to be complex, and psychological support to address past trauma is likely to be a factor that would help support the Applicant’s ongoing rehabilitation and abstinence from drug use.
Given his long history of drug use, I am of the view that he requires intensive and ongoing assistance (such as counselling) and rehabilitation in the community to remain drug free. He will also be returning to live with his partner, whom he engaged in significant drug use with, in the past. If his partner were to relapse, that may also have a bearing on the Applicant in that he would also be at risk of relapse. The Applicant also agreed at the hearing that if he did relapse to drug use that he is likely to commit further offences (transcript/63). This emphasises the importance of rehabilitation if the Applicant is to continue to abstain from drug use. Without having completed any rehabilitation or counselling for his drug use to date, and without any firm plans for rehabilitation in the community, the Applicant may find it difficult to abstain from using drugs in the longer term.
As I have already indicated, the Applicant also appears to have issues with consequential thinking, especially when he is under the influence of drugs. He has driven under the influence of methylamphetamine, including through a school zone as part of the Refusal Offences. When asked about the “aggravated reckless driving pursuit” and “driver failed to stop (circumstance of aggravation)” committed on 10 November 2017 he said he was “not thinking properly” because he was under the influence of drugs (transcript/21). When asked about being in possession of the stolen motorbike, the Applicant said he was “not thinking properly” and that he did not investigate properly when his friend gave him the motorbike to fix. He also jumped on the bike to attempt to get away from police because he was carrying a pipe that had methamphetamine in it (transcript/21 and 43). When asked about the Refusal Offences, specifically where he drove dangerously through the school zone to escape police, the Applicant also stated that he “was not thinking clearly”, “was on drugs” and knew he was not meant to be driving but got scared he would go to prison and that no one else could look after his pregnant partner (transcript/21-22). The following exchange, under cross-examination, is also relevant (transcript/30):
MR GERRARD:        What is your explanation for all of the - well, for just continually driving without the authority to do so?
APPLICANT:            I don’t really have any explanation. I was on drugs and I was not thinking clearly. I was not thinking about the consequences. I was making a mistake.
MR GERRARD:       When you say you were on drugs, were you driving when you were on drugs?
APPLICANT:            If I was not on drugs, I would have thought clearly that I was not allowed to drive so I would not have driven.
I note that the Applicant has not done any rehabilitation for consequential thinking (transcript/61), although his lack of consequential thinking does appear to relate to his drug use.
The Applicant has been granted parole twice by the Prisoners’ Review Board of Western Australia (PRB). This is an indication of the PRB’s view that, with parole conditions being imposed on him, the Applicant was not an unacceptable risk to the safety of the community. The PRB first decided to grant the Applicant parole at a parole hearing on 4 September 2019 during his first sentence of imprisonment for the 10 November 2017 driving offences (R2/144). The Applicant was granted conditional release on parole pending confirmation of suitable accommodation. The Applicant’s evidence at the hearing was that he stayed in prison because he could not secure accommodation (transcript/44). In those reasons, the PRB noted that the Applicant was of interest to the Department of Home Affairs, but that he continued to hold a visa and that his “release in Western Australia does not pose an unacceptable risk to the safety of the community” (R2/144). Even though the Applicant was not released on parole, when he was released from prison, he reoffended with further drug offences within 15 days of his release and drove whilst disqualified under the influence of drugs within 19 days of release (see above table of offending). This is a similar situation to the one the Applicant will find himself in if I decide this application in his favour. That is, he would be released into the community without conditions or supervision. I return to this in a moment.

I find that the primary considerations of the protection of the Australian community and the expectations of the Australian community, which both weighed strongly in favour of discretion being exercised to refuse to grant the Visa to the Applicant, outweigh the other primary considerations of the strength, nature and duration of ties, which weighed moderately, and the best interests of the Applicant’s minor daughter, D, which weighed moderately, and stepchildren which weighed slightly, against discretion being exercised to refuse to grant the Visa.
I am mindful and concerned that the legal consequences of the decision are that the Applicant faces the prospect of indefinite detention, and although that other consideration weighs strongly against the exercise of the discretion not to grant the Visa, applying paragraph 7(2) of Direction 99, it does not outweigh the primary considerations of protection of the Australian community and the expectations of the Australian community, even when added to the primary considerations that weigh in the Applicant’s favour.
Having regard to the relevant primary and other considerations in Direction No 99, I find that I should exercise discretion under s 501(1) of the Migration Act to refuse to grant the Applicant the Visa. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 January 2023, is affirmed.

I certify that the preceding 204 (two-hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..............[Sgd].......................................................
Associate
Dated: 9 May 2023

Date of hearing:
Date of decision:

6 April 2023

24 April 2023

Representative for the Applicant: Ms Jasmin Angel, Estrin Saul Lawyers and Migration Specialists

Representative for the Respondent:

Mr Arran Gerrard, The Australian Government Solicitor