MLQP and Minister for Home Affairs (Migration)

MLQP and Minister for Home Affairs (Migration) [2018] AATA 4123 (31 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4585
Re:MLQP
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal: The Hon. Matthew Groom, Senior Member
Date:31 October 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the applicant not be refused a Safe Haven Enterprise (Subclass 790) visa under section 501(1) of the Migration Act 1958.
.........[sgd]...............................................................
Senior Member
Catchwords
MIGRATION – refusal to grant Safe Haven Enterprise visa – consideration of character test - primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – applicant does not pass the character test – discretion - non-refoulement obligations – decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958
Cases
BHKM v Minister for Immigration and Border Protection [2018] AATA
DMH16 vMinister for Immigration and Border Protection [2017] FCA 448
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75
QKVH and Minister for Home Affairs (Migration) [2018]AATA 1855
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 22 December 2014)
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
31 October 2018
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent to refuse an application for a Safe Haven Enterprise (Subclass 790) visa under section 501(1) of the Migration Act 1958 (the Act).
The delegate’s decision was made on 6 August 2018.
The applicant sought an Administrative Appeals Tribunal review of the delegate’s decision on 15 August 2018, within the timeframe provided for in section 500(6B) of the Act.
The Tribunal must make its decision by 31 October 2018; otherwise the delegate’s decision is taken to be affirmed.[1]
[1] Section 500(6L) of the Act.
In accordance with sections 501K(1) and (2) of the Act, which restrict the Tribunal from publishing any information which may identify a person (or any relative or other dependant of a person) who has applied for a protection visa, the applicant in this matter has been assigned the pseudonym ‘MLQP’.
The hearing in this matter was conducted on 22 and 23 October 2018. The applicant was represented by Mr Olaf Ciolek and the respondent was represented by Ms Ashlee Briffa.
The applicant gave oral evidence with the aid of an interpreter in the Hazaragi language. JH, a friend of the applicant, also gave oral evidence by telephone. In reaching its decision, the Tribunal has carefully considered the oral testimony as well as all of the documentary evidence before it.
BACKGROUND
The applicant is a 24 year old from Afghanistan, of Hazara ethnicity and Shia Muslim faith. He arrived in Australia as an unauthorised maritime arrival on or around 6 November 2012 and was placed in immigration detention.[2]
[2] G Documents (GD) 18
The applicant was born in Afghanistan but migrated to Pakistan with his parents and siblings at around five years of age. They left Afghanistan due to security concerns and to “make a better life” for themselves. The remainder of his immediate family still live in Pakistan.
There was evidence before the Tribunal that the applicant was a resourceful and industrious young man. He helped earn money for his family by driving a rickshaw from around 12 years of age. The applicant became increasingly concerned for his safety due to his vulnerability as a young man of Hazara Shia heritage and he ceased working. The applicant ultimately decided to seek asylum in Australia, again for security reasons.
In January 2013 the applicant obtained a bridging visa and was released into the community.[3]
[3] Respondent’s SFIC 2.
During his time in the community, the applicant undertook various types of itinerant work on farms and vineyards in a variety of different locations across the country including in Victoria, New South Wales and Queensland. He sought out this work despite receiving Centrelink benefits which he considered to be more than sufficient to meet his day-to-day living expenses. The applicant explained to the Tribunal that he sought the additional income to help “save a little”.
In around late 2014 the applicant was the victim of a violent crime during which a car he had borrowed from a housemate was stolen. The crime was reported to police. The incident resulted in the applicant being asked to leave his share house and also to pay approximately $6000 to his housemate to cover the cost of the car and tools that were in the car at the time it was stolen. The applicant stated that he considered himself obliged to meet the payment.
At around the same time his mother fell ill back in Pakistan with a gall bladder type condition and the applicant stated that he felt a burden to provide additional money to help cover the cost of surgery.
Due to financial pressure the applicant was no longer able to afford the cost of accommodation and sometime during the early part of 2015 he became homeless. He began sleeping in a car. It was during this time that the applicant was introduced to drugs, initially “ice” and then subsequently heroin and methadone. He also smoked marijuana on a casual basis. The applicant gave evidence that he used drugs on a regular basis during this period. The applicant explained that he first began using ice to stay awake at night because he was particularly uncomfortable sleeping in a car. When he could not source ice or afford ice he would use heroin. When he could not source heroin he would use methadone.
It is not clear from the evidence exactly when his drug dependency commenced but it would appear to be either towards the end of 2015 or early 2016. He continued using drugs until being returned to detention on 29 March 2017.
There is no evidence that the applicant had ever used drugs before this period in his life. A friend of the applicant, JH, gave evidence and stated that he was genuinely shocked when he discovered that the applicant had become a drug user. He has known the applicant since a very young age, having previously lived on the same road as him back in Pakistan. JH described himself as a close friend of the applicant and someone who had seen him every day during the time they had lived near each other in Pakistan. He also gave evidence of having caught up with the applicant on a semi-regular basis during the time they had both lived in Australia. He described the applicant’s drug use as completely out of character. He described the applicant as a dedicated son who had a very close relationship with his mother and was committed to doing the right thing by his family.
The applicant gave evidence that during this period he also became addicted to gambling. He would play the pokies either at a pub close to where he was sleeping or at Crown Casino. Again, there is no evidence that the applicant had a gambling issue prior to becoming homeless in 2015.
On 12 January 2017 the applicant was involved in a verbal altercation with two other men at a train station that resulted in him being charged with a number of offences including: two counts of assault with a weapon, one count of assault and one count of possessing a drug of dependence (the train station incident). The last charge was subsequently dropped.
The applicant was bailed but failed to appear at Court in accordance with the conditions of that bail.
On 1 February 2017 the applicant’s bridging visa was cancelled.[4] However, he remained in the community as an unlawful non-citizen.
[4] GD 35-50.
The applicant was stopped by police on 20 March 2017 and gave a false name and date of birth. The applicant consented to a search during which police found heroin, drug paraphernalia and a box cutter. The applicant was arrested and made full admissions to possessing heroin.[5]
[5] Bundle of Relevant Documents (RD) 151.
On 29 March 2017 the applicant voluntarily presented himself to immigration officials and was taken back into detention.[6]
[6] GD 133.
On 8 September 2017 the applicant was convicted in the Magistrates Court on the remaining charges together with an additional charge of failing to answer bail. He was fined a total of $5000 in relation to the offences.[7]
[7] RD 25.
ISSUES
The Tribunal is required to determine two issues in making its decision. It must first determine whether the applicant passes the character test under section 501(6) of the Act.
If satisfied that the applicant does not pass the character test, it must then consider whether to exercise the discretion under section 501(1) of the Act to refuse his application for a visa. The Tribunal is required to apply the relevant considerations in Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) in determining whether the discretion should be exercised.
CONSIDERATION
The Character Test
In accordance with section 501(1), the Minister may refuse to grant a visa to a person if the person does not pass the character test as defined in section 501(6).
A person will not pass the character test under section 501(6)(d)(i) where, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. Relevant to section 501(6)(d)(i) is the degree of risk a person poses. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 relevantly states:
The purpose of this amendment is to clarify the threshold of risk that a decision‑maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to provide that it amounts to a significant risk.
Further guidance is provided in Annex A to the Direction, which relevantly says at paragraph 6(2) and (3):
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
It was acknowledged by the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75 that a low risk may still be a real risk. The Court held at [22] that:
As appears from the observations of Mason J. in Wyong Shire Council v Shirt, there is no inconsistency in finding that a risk is real, in the sense that it is not far‑fetched or fanciful, yet the degree of probability of its occurrence is quantitatively low. Such a course is rationally open provided that the word “real” is used in a qualitative and not a quantitative sense to describe the risk.
In assessing the risk of the applicant engaging in criminal conduct the Tribunal must consider his offending to date.
The applicant’s prior offending includes the assault offences and failure to answer bail which all arose out of the train station incident described above.
The Tribunal is satisfied that the assault offences were serious and can reasonably be described as criminal conduct. Counsel for the applicant sought to argue that the assault offences should not be considered violent as they did not involve actual physical force. The Tribunal rejects this contention. The assault offences inherently involve a threat of force and can therefore reasonably be described as involving an element of violence. This is certainly true of the offence of ‘assault with a weapon’.
The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind a conviction and examine the facts upon which it is based. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters that give context to a conviction.
There was inconsistency in the evidence before the Tribunal in relation to the context of the applicant’s offending. The applicant maintains that he was provoked by two men who then approached him with a metal bar and that he retrieved a box cutter from his bag in order to defend himself. This account was supported by the witness statement of the applicant’s friend.
The witness statements of the other men involved in the altercation present a very different story; namely, that the other men were un-armed and that it was the applicant who approached the men, acting in an erratic and aggressive manner and threatening to kill them. That he pulled out a knife and ran at one of the victims. The Tribunal notes that there was no charge brought against the applicant in respect of a threat to kill.
The Tribunal accepts that it is likely that the applicant was in an agitated state and behaving erratically and likely that he contributed significantly to the escalation of the incident. On the applicant’s own evidence, it is likely that he was under the influence of drugs at the time of the offending. The applicant also conceded that he was extremely frustrated at the time due to his inability to source more drugs.
Given the inability to test the other witness’ accounts, the Tribunal is not prepared to make any further findings in respect of the precise circumstances of the offending.
The Tribunal acknowledges that each of the assault offences were summary offences resulting in no actual physical harm; and the sentence imposed by the Court is strongly suggestive of a belief by the Magistrate that the offending was towards the lower end of the scale. The sentence imposed was a fine of $5000 with no custodial sentence. The maximum sentence for the offence is a term of imprisonment of two years. In these circumstances the Tribunal is satisfied that the applicant’s offending in connection with the train station incident was, while serious, at the low end of the scale for offending of that kind.
The Tribunal acknowledges that there was other conduct that the applicant has admitted to that may have amounted to offending but in relation to which charges were never laid or not pursued. This includes the giving of a false name and birth date. Given the absence of any independent assessment of the applicant’s wrongdoing in connection with such conduct the Tribunal places little weight on it.
Both at the hearing and in its Statement of Facts Issues and Contentions, the respondent sought to emphasise the applicant’s behaviour in detention as further evidence of his potential to engage in future criminal conduct. The Tribunal accepts that the applicant has been involved in a number of incidents with other detainees. Counsel for the applicant submitted that such incidents should be considered relatively minor particularly when assessed in the context of the highly stressful environment of detention. The Tribunal agrees with the applicant’s submission and therefore places very little weight on this evidence.
However, the applicant was also involved in an incident with a detention officer where the applicant admitted he spat at the officer. According to the applicant’s evidence, the incident involved the applicant being denied juice by the officer. The applicant stated that he believed the officer had deliberately denied him the juice in favour of other detainees and that he had become frustrated as a result. Counsel on behalf of the applicant again suggested that the incident should be viewed as a minor infraction. The Tribunal does not accept that characterisation. Notwithstanding the context as put forward by the applicant, and the stresses of the detention environment, the officer is an official detention officer employed by the Government and the conduct of the applicant was out of proportion and wrong. Of course it should be acknowledged that this incident did not result in any charge against the applicant and the exact circumstances surrounding the incident have not been tested through an independent process. To his credit, in his oral evidence the applicant accepted that his reaction to the officer was out of all proportion and he made it clear to the Tribunal that he very much regretted his behaviour.
As recognised in the wording of the Direction, past conduct is not necessarily indicative of future conduct. To assess the potential future risk it is necessary to reflect on the circumstances of the offending and the likelihood of those circumstances repeating.
The evidence before the Tribunal suggests that the applicant is not an inherently violent or aggressive person. The applicant’s friend, JH, has stated that he considered the applicant good natured, hard-working, and polite.[8] In a statement he provided that was tendered into evidence, JH said that:
he knew the applicant to “be a nice person and a good soul. The [MLQP] that I know is not the kind of person that wants to hurt or endanger somebody.”[9]
[8] GD 121.
[9] Statement of JH dated 16 October 2018.
JH gave evidence that in all the time he had known the applicant he had never know him to be involved in fights, to have been aggressive in any way or to have taken drugs.
JH described his shock when he learned about the applicant’s offending. Again, in his written statement he said:
He is not that kind of person. From what he has told me, he was not in a good state of mind at that time in his life.[10]
[10] Ibid.
The Tribunal found JH to be a very credible witness. He answered the questions put to him very candidly. When asked on a number of occasions whether the applicant had told him about the other men being armed during the altercation at the train station, JH made it clear that the applicant had not told him.
Having considered all of the evidence, the Tribunal is satisfied that the applicant does not have an inherent tendency toward offending and that by far the most significant causal factor for his offending was his drug addiction.
In this sense, the applicant’s potential for reoffending is inextricably linked to his potential for relapse into drug use.
There was generalised statistical evidence before the Tribunal that suggests the potential for an ice addict to relapse is very high, potentially as high as 80-90 per cent. Counsel for the applicant submitted that generalised statistical information needed to be treated with great caution as each person’s particular circumstances vary. They also submitted that there was evidence to suggest that the applicant had been clean of drugs for a sufficient time to be considered outside of the withdrawal and recovery phase and therefore should no longer be considered an addict.[11]
[11] Bundle of Documents Submitted by the Applicant (ABD) 109.
The Tribunal accepts that the applicant’s drug addiction arose out of a specific set of circumstances involving significant financial stress and homelessness. While those circumstances were particular and are not likely to repeat themselves in exactly the same way, it is quite likely that the applicant will continue to face challenges if released back into the community.
However, there are a number of factors that were presented to the Tribunal which would suggest a likelihood of the applicant avoiding a relapse back into drug use in the future.

The Tribunal accepts that the applicant has been drug free during the period he has been back in detention, a period of approximately 18 months.
The Tribunal acknowledges the personal commitment of the applicant to stay free of drugs, to secure a positive future for himself and his family and to make a positive contribution to the community. It was clear from his evidence that the applicant was genuinely embarrassed and remorseful for his offending and drug use. He demonstrated a level of self-awareness and insight into his drug use and associated wrongdoing and also of the challenges he would face if released back into the community.
The applicant made it clear that he understood how important remaining drug free was for his future prospects and he stated a number of times his commitment to taking practical steps to reduce the prospect of relapse. In particular, he referenced avoiding old social networks involved in drug use, relocating to an area with strong personal connections for moral support and securing and maintaining good employment and accommodation.
The applicant appeared to be aware of the severe consequences that he stands to face in the event of any further offending, including the potential for him to be returned to detention or sent back to Afghanistan where he would face a real risk of serious harm.
The Tribunal also notes the personal support offered by the applicant’s friends in assisting him to transition back into the community. In particular, the Tribunal notes the commitment of the applicant’s close personal friend, JH, who has offered to assist the applicant in securing employment and accommodation. JH indicated that he was confident the applicant could secure both accommodation and employment near where he is currently living in Western Australia.
Notwithstanding these mitigating factors, the Tribunal acknowledges that if released back into the community the applicant will face significant challenges which will test his resolve to remain drug free. His capacity to remain drug free has not yet been tested outside of the detention environment. It is one thing to refrain from drug use with all of the controls and constraints of detention; it is quite another to maintain the discipline that will be required while dealing with the day to day pressures on the outside.
Having carefully considered all of the evidence, the Tribunal is satisfied that there remains a real risk of the applicant relapsing back into drug use. Although, having regard to the mitigating factors described above, in particular the length of time the applicant has been drug free, the applicant’s own personal resolve as well as the support offered through his friendship network, that risk should be assessed as being at the lower end.
However, even accepting a low prospect of relapse, given that possessing drugs can, of itself, constitute criminal conduct and acknowledging his prior history of assault and the strong association between ice addiction and aggressive and unpredictable behaviour, the prospect of the applicant engaging in future criminal conduct must be considered to be more than minimal or trivial.
For these reasons the Tribunal is satisfied that there remains a risk of the applicant engaging in further criminal conduct that is more than minimal or trivial. On that basis the Tribunal finds that the applicant does not pass the character test as set out in section 501(6)(d)(i) of the Act.
The Discretion
Having determined that the applicant does not pass the character test, the Tribunal must determine whether to exercise the discretion to refuse the applicant’s visa under section 501(1). In so doing, the Tribunal must consider the guidance provided in Direction 65 – Part B.
Primary Considerations
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of Direction 65 provides that when decision-makers are considering the protection of the Australia community they:
…should have regard to the principle 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.
The nature and seriousness of the conduct
Section 11.1.1(1) of Direction 65 further provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, 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)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non‑citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence 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)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
For the reasons stated above, the Tribunal accepts that the applicant’s offending in connection with the train station incident should be considered serious, albeit at the low end of the scale for offending of that kind. The sentence imposed by the Court in respect of his offending is consistent with this assessment.
The Tribunal also recognises the seriousness of the applicant’s conduct toward the detention officer as described above although, as noted, this did not give rise to a charge of any kind.
All of the applicant’s offences can be traced back to a single incident which occurred in a particularly difficult period in his life and when he was under the influence of drugs.
There is no evidence of an increasing seriousness in the applicant’s offending.
The applicant spoke throughout the hearing of his remorse for his wrongdoing and his drug addiction. He spoke of a commitment to avoid drug use in the future and his determination to make a better life for himself and his family. The Tribunal does not question the applicant’s commitment. He also has significant offers of support from friends in meeting the challenges he will inevitably face in transitioning back into the community.
Notwithstanding this, and having carefully considered all of the evidence, the Tribunal is satisfied that the applicant’s offending is sufficient to raise concerns about the safety of the Australian community should the decision to refuse the applicant’s visa be overturned. While having full regard to the circumstances in which they occurred, the assault offences committed by the applicant can only properly be described as serious and therefore the nature and seriousness of the applicant’s criminal conduct should weigh in favour of refusing the visa.
Risk to the Australian community
A decision-maker should also have regard to the following principle, described in paragraph 11.1.2(1) of Direction 65 as follows:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) of Direction 65 further provides:
In addition, decision-makers should have regard to the principle that 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 should be allowed to come to, or remain permanently in, Australia.
Additionally, paragraph 11.1.2(3) of Direction 65 states:
In considering the risk 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; and
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any 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); and
iii.the duration of the intended stay in Australia.
The Tribunal acknowledges that the Australian community has a low tolerance of criminal or serious conduct committed by visa applicants and that tolerance decreases as the seriousness of the potential harm increases.
The potential risk of the applicant reoffending has been substantially dealt with in the character test assessment above.
It is difficult to assess the risk of potential harm to the Australian community. None of the applicant’s offending involves actual physical harm. Despite being addicted to drugs for a period of up to 18 months, the only known offences involving an element of violence were the assault offences arising from the train station incident. As indicated above, the Tribunal’s assessment of that offending is serious but at the low end of the scale. The sentence imposed on the applicant is consistent with this assessment.
The evidence before the Tribunal suggests the applicant is not inherently aggressive or violent. His only offences were inextricably linked to his drug use and occurred while he was addicted. The Tribunal accepts that if the applicant were to relapse, then in light of his past conduct while addicted to drugs and the strong association between ice addiction and aggressive and unpredictable behaviour, there is a risk of the applicant engaging in future criminal conduct that could cause harm to the Australian community.
The risk of the applicant engaging in future offending would appear to be connected to his risk of relapse. For the reasons set out above, the Tribunal accepts that the risk of relapse is low and therefore his risk of reoffending is low but not so low as to be considered minimal or trivial. Therefore, the Tribunal finds that there remains a real but low risk of harm to the Australian community. Accordingly, this factor should weigh slightly in favour of refusing the visa.
Best interests of minor children in Australia
The applicant has no minor children in Australia. Accordingly, this consideration is given no weight.
Expectations of the Australian community
Paragraph 11.3(1) of Direction 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal notes the Federal Court decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 which held that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.
However, the Direction requires an assessment and appropriate weighting of this consideration in all of the specific circumstances of the case. This is reinforced through the use of the words “may be appropriate” in paragraph 11.3(1).
In the circumstances of this case, the Australian community would expect a decision-maker to be concerned about the nature of the applicant’s offending, the risk of reoffending and the potential harm to the community.
However, the Australian community would also expect a decision-maker to have regard to the fact that the offending, while serious, is at the low end of the scale, and that the risk of harm to the community, while real, is also at the low end.
The Australian community would also expect a decision-maker to have regard to the strong remorse shown by the applicant, his commitment to avoid relapse and reoffending and his determination to make a positive life for himself and his family. They would also expect a decision-maker to have regard to the potential risk to the applicant should he be forcibly returned to Afghanistan and also acknowledge Australia’s international obligations of protection toward the applicant.
For these reasons, the expectations of the Australian community weigh only slightly in favour of refusing the visa.
Other considerations
International non-refoulement obligations
Direction 65 relevantly states at paragraph 12.1:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non‑refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s 501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa .
(4) Where a non-citizen makes claims which may give rise to international non‑refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
Both in their written submissions and at the hearing, the parties presented alternate views on the proper application of paragraph 12.1 of the Direction in light of the Federal Court’s interpretation of section 197C as outlined in DMH16 vMinister for Immigration and Border Protection [2017] FCA 448.
The respondent argued that in applying DMH16, paragraph 12.1 should be read excluding the final sentence of paragraph 12.1(2) and the final sentence of paragraph 12.1(6) on the basis that the offending sentences were statements inconsistent with the Act and therefore beyond power..[12] Section 499 of the Act requires the Tribunal to apply the Direction but only so far as it is consistent with the Act.[13] The respondent contends that the remainder of paragraph 12.1 is consistent with the Act, within power and should be applied.
[12] In the alternate the respondent argued that paragraph 12.1(2) should be read with the word ‘will’ substituted for the word ‘might’ but didn’t press this point.
[13] Section 499(1) and (2).
Further, the respondent argued that in applying paragraph 12.1 in this way, the existence of a non-refoulement obligation does not of itself prevent the Tribunal from affirming a decision to refuse the applicant’s visa. However, the respondent conceded that in the weighing up exercise, the existence of a non-refoulement obligation can present a significant consideration which, in the right circumstances, could outweigh other considerations, including primary considerations.
The applicant sought to argue that reading down paragraph 12.1 in accordance with DMH16 rendered the whole of paragraph 12.1 invalid and that the Direction should therefore be read with the whole of paragraph 12.1 excluded. The applicant also submitted that if the Tribunal accepted that the existence of a non-refoulement obligation could be a significant consideration and outweigh other considerations then it was not necessary for the Tribunal to consider the applicant’s preferred approach to paragraph 12.1 in making a decision in this matter.
The Tribunal accepts the respondent’s approach to paragraph 12.1, noting the consistency with the approach taken previously in this Tribunal including in BHKM v Minister for Immigration and Border Protection[14] and QKVH and Minister for Home Affairs (Migration)[15].
[14] BHKM v Minister for Immigration and Border Protection [2018] AATA.
[15] QKVH and Minister for Home Affairs (Migration) [2018]AATA 1855.
There is no dispute between the parties on the existence of international non-refoulement obligations in respect of the applicant.
A delegate of the Minister has determined that the applicant is a person in respect of whom Australia has protection obligations and neither party presented any reason to reconsider the matter.

In deciding that the applicant was owed international protection obligations the delegate noted that:
(a)..there is a real chance the applicant will be detained, tortured and possibly killed by the Taliban while travelling on the roads between Kabul and his home area on the basis of being a Shia Hazara;
(b)As a Shia Hazara from Jaghori district, Ghazni province, I am satisfied there is a real chance of serious harm if the applicant were to return to his home area on the basis of his race and religion.
(c)I consider it not reasonable for [the] applicant to relocate to an area where he would not face a real risk of significant harm.[16]
[16] RD 134- 148.
In written submissions, the respondent stated that it was not “presently” reasonably practicable to remove nationals of Afghanistan involuntarily from Australia, as the Afghan Government will not issue travel documents in relation to such individuals.[17] However, no evidence was submitted to the Tribunal on this point and at the hearing the respondent conceded that there was no proper basis for the Tribunal being satisfied that repatriation would not be reasonably practicable at any time in the future.
[17] Respondent SFIC 7.
Therefore, in considering this matter the Tribunal must assume that if it were to affirm the decision to refuse the applicant’s visa, the applicant would be forcibly repatriated back to Afghanistan subject only to the Minister exercising a non-compellable discretionary power under the Act. Australia’s non-refoulement obligations would be irrelevant to the duty to remove the applicant under the Act.[18] The respondent confirmed the Government’s stated policy position of ensuring that its protection obligations are met. It is through the exercise of the Minister’s discretion that the Government is able to achieve that policy outcome. However, it would be inappropriate for this Tribunal to make any assumption about the future exercise of the Minister’s non-compellable discretion notwithstanding the existence of such a policy. Certainly no evidence was presented to the Tribunal about the likely future exercise of the discretion.
[18] Section 197C of the Act and DMH16, op cit.
If the applicant was to be forcibly removed from Australia and repatriated back to Afghanistan, Australia would be in breach of its international protection obligations. This must weigh heavily against the refusal of the visa.
In addition, as acknowledged in the delegate’s protection obligation assessment, the applicant would face a real risk of suffering significant harm if he was repatriated back to Afghanistan. This must also weigh heavily against the refusal of the visa.
For these reasons, the non-refoulement consideration must weigh heavily against the refusal of the visa.
Impact on family members
The applicant has no family in Australia. Accordingly, this consideration is given no weight.
Impact on victims
The Tribunal does not have evidence before it regarding the impact the applicant’s release from detention would be likely to have on the victims of the applicant’s criminal behaviour, or the family members of the victims. Therefore, this consideration weighs neither for nor against the exercise of the discretion.
Impact on Australian business interests
No evidence was presented to the Tribunal on the impact of the decision on Australian business interests. Accordingly, this consideration is given no weight.
Additional Considerations
No evidence was presented to the Tribunal of other considerations.
CONCLUSION
The Tribunal is satisfied that the applicant does not satisfy the character test set out in section 501(6) of the Act and therefore is required to exercise the discretion in section 501(1) of the Act in accordance with Direction 65 – Part B. The Tribunal has carefully assessed each of the considerations of Direction 65 as set out above.
The Tribunal recognises the serious nature of the applicant’s prior offending but assesses it at the low end of the scale for offending of its kind. The Tribunal acknowledges the low but real risk that the applicant’s release could pose to the Australian community.
Paragraph 8(4) of the Direction states that “Primary considerations should generally be given greater weight than the other considerations.” However, there is nothing in the Direction which would prevent the Tribunal from giving greater weight to one of the non-primary considerations in the right circumstances. On this point, the Tribunal notes the decision of Banks Smith J in HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013, where Her Honour considered the question of the relative weighting to be given to the non-refoulement obligations consideration in applying Direction 65. Her Honour concluded at [38]:
..it was a consideration that was to be weighed not from the starting point of being of secondary importance but from a position that allowed for the potential for such consideration to be afforded equal or greater weight than a primary consideration.
The Tribunal is satisfied that in the circumstances of this case, Australia’s non-refoulement obligations weigh heavily in favour of a decision not to refuse the applicant’s visa. For these reasons the Tribunal is satisfied that the overall balance weighs slightly in favour of the applicant and against a decision to refuse the visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the applicant not be refused a Safe Haven Enterprise (Subclass 790) visa under section 501(1) of the Migration Act 1958.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of

...[sgd].....................................................................
Associate
Dated: 31 October 2018

Date(s) of hearing: 22 - 23 October 2018

Counsel for the Applicant: Mr Olaf Ciolek

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: Ms Ashlee Briffa

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 4123

31 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	22 - 23 October 2018
Counsel for the Applicant:	Mr Olaf Ciolek
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Ms Ashlee Briffa
Solicitors for the Respondent:	Australian Government Solicitor