NDFN and Minister for Immigration and Border Protection
[2017] AATA 892
•9 June 2017
AppID: NDFN and Minister for Immigration and Border Protection
MatterType: Migration
Division
GENERAL DIVISION
File Number(s)
2017/1576
Re
NDFN
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A. Nikolic AM CSC
Date 9 June 2017 Place Melbourne The decision under review is set aside and in substitution, it is decided that NDFN should not be refused a Protection (Class XA) Visa under section 501(1) of the Migration Act 1958.
..........................[sgd]..............................................
Senior Member A. Nikolic AM CSC
MIGRATION – visa refusal – application for protection visa – Australian and foreign convictions – provision of false or misleading information to immigration authorities – failure to pass character test – discretion to refuse visa application enlivened – decision under review set aside – decision in substitution that discretion to refuse visa application should not be exercised
LEGISLATION
Migration Act 1958(Cth); ss 195A, 197C, 198, 234, 499(2A), 500(6L), 501(1), 501(6)(d)(i), 501K
CASES
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Re KLLV and Minister for Immigration and Border Protection [2016] AATA 896
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wong vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 44
SECONDARY MATERIALS
AAT Guideline for Persons Giving Expert and Opinion Evidence dated 30 June 2015
Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014
Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
9 June 2017
BACKGROUND
I will refer to the Applicant in these proceedings by the pseudonym ‘NDFN.’ This accords with sections 501K (1)(a) and (2) of the Migration Act 1958 (the Act), which require that the identity of applicants for protection visas, or their relatives or other dependents, is not to be published by the Tribunal. Accordingly, I directed that the hearing of this matter take place in private and prohibited the publishing or other disclosure of information tending to reveal the identity of NDFN, his relatives or dependents. Certain dates, the names of some witnesses, and the names of those who provided statements of support, have also been altered to ensure confidentiality.
NDFN is a citizen of Malaysia who first came to Australia in 2012 on a tourist visa. He was accompanied by his Malaysian girlfriend, who he married in Australia within four months of arrival. In 2014 they jointly applied to the Department of Immigration and Border Protection (the Department) for a Protection (Class XA) Visa.
On 12 December 2016, while his Protection Visa claims were being processed, the Department issued NDFN a Notice of Intention to Consider Refusal of his Protection Visa application under section 501(1) of the Act. The Department said it held information about his criminal record, suggesting he may not pass the character test pursuant to section 501(6) of the Act. After considering NDFN’s responses to the Notice, a delegate of the Minister refused his visa application on 20 March 2017. The delegate concluded that NDFN failed the character test because if allowed to remain in Australia, there was a risk he would engage in criminal conduct. NDFN’s Bridging Visa was cancelled and he was taken into immigration detention where he presently remains.
On 22 March 2017 NDFN asked the Tribunal to review the visa refusal decision.
The hearing was held on 1 June 2017. Because NDFN’s application relates to the review of a decision under section 501 of the Act, it falls under the expedited processing arrangements required by section 500(6L) of the Act. A decision in respect of NDFN’s application must therefore be issued within 84 days of him being notified that his visa application was refused. My decision must therefore be published by not later than 12 June 2017, failing which the decision under review is taken to have been affirmed.
For the reasons that follow, the decision under review is set aside and in substitution, it is decided that NDFN should not be refused a Protection (Class XA) Visa under section 501(1) of the Act.
CONVICTIONS
A Police Certificate from the United Kingdom (UK) lists NDFN’s convictions as follows:
COURT
COURT DATE
OFFENCE
COURT RESULT
Uxbridge Magistrates Court xx xxxx 2005 Driving a motor vehicle with excess alcohol on xx/xx/05
Subsequently varied xx/xx/08
Using vehicle while uninsured on xx/xx/05
Driving otherwise than in accordance with a licence on xx/xx/05
Community order 150 hours unpaid work. Disqualification from driving 24 months. Driving licence endorsed. Order revoked. Subsequently varied xx/xx/08.
Suspended imprisonment 3 months for 2 years. Supervision requirement 2 years. Curfew requirement 3 months with electronic tagging. Costs £60.00.
Driving licence endorsed. No separate penalty. Disqualification from driving 6 months.
Fine £25.00. Costs £55.00. Driving licence endorsed.
Uxbridge Magistrates Court
xx xxxx 2008
Breach of a community order between xx/xx/07 and xx/xx/07
Resulting from original conviction of xx/xx/05. Order revoked.
A National Police Certificate dated 28 January 2016 lists NDFN’s Australian convictions:
COURT
COURT DATE
OFFENCE
COURT RESULT
Melbourne Magistrates Court xx xxxx 2015 Contravene Family Violence Final Intervention Order
Assault Police on Duty (2 charges)Convicted. Community correction order for 18 months. To perform 100 hours of unpaid community work over 6 months commencing xx/xx/2015 Melbourne Magistrates Court
xx xxxx 2015
Assault With Weapon
Convicted. Community correction order for 18 months. To perform 100 hours of unpaid community work over 6 months commencing xx/xx/2015.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister or their delegate the power to refuse to grant a visa, because the applicant is unable to satisfy the Minister that they are able to pass the character test. The Tribunal’s jurisdiction to review such decisions is provided for at section 500(1)(b) of the Act.
The term character test is defined at section 501(6) of the Act. A person does not pass the character test if any one of the eleven sets of circumstances detailed in that section applies to them. The Minister’s delegate has refused NDFN’s visa application pursuant to section 501(6)(d)(i), which states that a person does not pass the character test if:
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
…
DIRECTION NO. 65
If a visa applicant does not pass the character test, this enlivens a discretion to refuse to grant or to cancel their visa. Guidance in exercising the discretion is found in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
Paragraph 6.1 of the Direction sets out the following objectives:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501…
The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7.1(a) of the Direction states that a decision-maker ‘must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’ Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
... Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
If it is determined that NDFN does not pass the character test, the following primary considerations in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 12(1) of the Direction requires that other considerations which must be taken into account, where relevant, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Paragraph 8(4) of the Direction states that ‘primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘one or more primary considerations may outweigh other primary considerations.’
ISSUES
The two issues to be resolved in this case are:
(a)whether NDFN passes the character test set out in section 501(6) of the Act; and
(b)if not, whether the discretion in section 501(1) of the Act to refuse his visa application should be exercised, after applying the relevant considerations to the specific circumstances of NDFN’s case.
NDFN’S CRIMINAL AND GENERAL CONDUCT
NDFN has not been imprisoned as a result of either his UK or Australian offences and does not have an extensive criminal history. His UK offences relate to a single traffic stop in 2005. His Australian offences relate to a single incident in October 2015, during a volatile argument with his wife. NDFN has not been charged with any subsequent matters in either the UK or Australia.
In his Statutory Declaration dated 23 September 2015, NDFN explains that the vehicle-related offences in the UK occurred after he drank too much alcohol at a friend’s wedding. He submits that he was ‘young and stupid,’ but has learned from these offences by not repeating them. NDFN attributes his failure to complete the community order arising from these offences to school and exam pressures, resulting in another court appearance and a variation of his sentence with more stringent conditions.
In his written and oral evidence NDFN contextualises his Australian convictions as resulting from a volatile relationship with his wife. He attributes that volatility to the stress and trauma they had experienced together and individually, including non-acceptance of their marriage by his wife’s family. NDFN contends that the frequent disputes with his wife have been ‘just normal arguments,’ and that he ‘had never threatened or abused her.’ He submits that during these arguments they both ‘called the police’ on a number of occasions. The available evidence confirms that police were called on a number of occasions, but only in response to the actions of NDFN. It is in response to his actions that police took out a Family Violence Intervention Order at the request of NDFN’s wife, albeit with a condition that still allowed them to live together. NDFN breached that order during a subsequent incident in October 2014, resulting in his wife again calling the police. At the hearing NDFN expressed surprise at the attendance of police, stating that he followed their instructions at all times. He accepts that he was holding a knife when police arrived, but submits that it was for the purpose of ‘cutting a kebab.’ He contends that police misconstrued the purpose for which he was holding the knife, but agrees that he yelled at police after dropping the knife, because he was ‘upset by the situation.
In a Statutory Declaration dated 10 January 2017, NDFN’s wife confirms an intervention order was obtained by police on her behalf, which allowed them to live together, provided that NDFN did not ‘threaten or harm’ her. Following the October 2014 incident, however, NDFN was charged with a number of offences and a condition was added to the intervention order, which no longer permitted them to live together. NDFN’s wife contends in her statement that he was not physically violent towards her and despite the October 2014 incident, she is ‘not scared for her safety’ and ‘didn’t think he was trying to harm [her] with the knife.’ She states it was the police who ‘insisted that he be charged’, that she and NDFN continued to see each other after this incident ‘to see how the relationship would go’, and have ‘lived together on and off’ after the intervention order ceased. She states they have not always been happy in their relationship, but contends that NDFN is a ‘good person’ who has made ‘positive changes…in his thinking and behaviour’ since the October 2014 incident. She submits that NDFN would not ‘engage in criminal conduct or…harass, molest, intimidate or stalk’ her or anyone else if allowed to remain in Australia.
NDFN’s wife did not attend the hearing and was not cross-examined. Moreover, her Statutory Declaration to the Tribunal in support of NDFN contrasts with her statement to Victoria Police immediately after the October 2014 incident. Under summons, Victoria Police provided statements from NDFN’s wife, her brother, and attending police officers. These were accepted into evidence without objection. The following extracts are taken from those statements:
(a) NDFN’s Wife:
On [xx] October 2014 my husband…came home drunk at approximately 04:30am…[NDFN] had the key to get inside but the chain was hooked on the door so he couldn’t get in. I couldn’t hear him banging because I was fast asleep. He ended up forcing the door and chain and damaged the door.
[NDFN] came into my room while I was still in bed. He was angry and yelling asking me why I would lock him out of his own house. He started arguing with me pulling the blanket off me…I told him to go away and I just wanted to go to sleep. I decided to call police when he eventually left the room. [NDFN] came back into the room as I was on the phone. He kept yelling and screaming.
He kept arguing until police arrived. They didn’t take long. They knocked on the door and he got really furious. He went to the bathroom. I was really scared he was going to do something…He walked out of the bathroom and into the kitchen and brought back a knife into the room. It was a long bread knife about 30cm and has the sharp edges.
I was sitting on the bed and my brother was in the room. I went up to get the door and screamed because he was waving the knife at me. He was telling me not to say anything to police and pointing the knife at me. I told him I would not talk to police and he let me get up to open the door. I told police that he had a knife and they told me to come outside...
…
I have since given this matter consideration and decided that I wish to withdraw my complaint and have police take no further action in relation to this matter. The decision to withdraw this complaint was reached on my own initiative.
…I am making this statement through the exercise of my own free will and not under duress or intimidation.
(b) NDFN’s Wife’s Brother (who was staying at the residence during the incident):
This morning, [xxth] of October 2014, [NDFN] was too drunk…He didn’t touch my sister from what I saw, but he did yell a lot at her.
After police came, he took a knife. He saying don’t call police. Police came to the door and I ran away because I was scared. I run into the bathroom. When [NDFN] held the knife, it scared me. The knife was about 30 cm in length…He says bad words to my sister. This has been happening for more than a month…I am so scared and in fear of this man. I couldn’t live with him…He drinks in the morning. He drinks all the time…The relationship between my sister and [NDFN] is no good. It is really bad.
(c) Attending Constable 1.
My name is [***] and I am a first Constable stationed at the [***] Police Station.
On [xxth] of October 2014 I was working divisional van duties with Constable [***].
At 4:52 AM we received a job via police communications…regarding a dispute. The job indicated that it involved a male and female who are arguing at the address and the male was alcohol affected.
…
As we approached the door we heard loud banging and screaming coming from inside the unit. I could hear at least one male and one female inside.
Constable [***] checked the door, which was locked and then knocked on the door and shouted “police, open the door”.
…
I then knocked on the door and said “Police, open the door”.
It sounded like it went quiet for a second inside and then I heard the door start to open.
I withdrew my O/C spray from its scabbard.
Myself and Constable [***] both took a step back from the door and a female, who I now know to be the victim [NDFN’s wife], opened it and said “he’s got a knife.”
I grabbed [NDFN’s wife] and escorted her out of the room and then from the doorway I saw a male standing outside the bedroom door holding a large kitchen knife in his right hand. The male who I now know to be [NDFN] was standing approximately 5 metres away from us and standing side on to us.
Constable [***] shouted for [NDFN] to drop the knife. [NDFN] then turned slightly towards us so he was facing us with the knife by his side in his right hand.
I observed the knife to be a serrated bread knife with a silver coloured blade. The blade was approximately 25 cm long.
I put my O/C spray into its scabbard and drew my firearm and pointed it at [NDFN].
Constable [***] also drew her firearm at the same time.
I shouted “drop the knife” numerous times. [NDFN] hesitated for approximately 5 seconds and then threw the knife approximately 2 metres in front of him.
I moved forward and dropped the male to the ground. Another male then appeared from the bedroom who I now know to be [NDFN’s wife’s brother]…I instructed him to get on the ground. Constable [***] handcuffed [NDFN] and I secured the knife.
…
I arrested [NDFN] and gave him his caution and rights.
[NDFN] was immediately verbally abusive towards police.
[NDFN] was severely alcohol affected.
I observed a hole in the bedroom door, which was situated approximately 5 metres opposite the front entrance door. [NDFN’s wife] informed me that [NDFN] had kicked the hole in the door.
…
(d) Attending Constable 2.
The statement of the second attending constable is consistent with that of her colleague.
NDFN has consistently maintained that his actions were misconstrued by police:
(a)He states in his Statutory Declaration dated 23 September 2015:
I dropped the knife but the police arrested me for breaching the intervention order and also charged me with assault. I had not physically assaulted the police and it was not my intention to threaten them but after I dropped the knife I was yelling at them because I was upset by the situation…
(b)In a letter to the Department dated 11 January 2017, NDFN’s then solicitor states:
While we acknowledge that any offence relating to violence or a threat of violence should be considered serious, in these circumstances, we submit that the intention of [NDFN] was misconstrued.
(c)Paragraph 15 of the Applicant’s Statement of Facts, Issues, and Contentions dated 28 April 2017 states: ‘When the police arrived the Applicant was holding a bread knife that he had used to cut a kebab in the kitchen’; and again at paragraph 67: ‘The offences in Australia arose from a situation taken out of context…’’
In considering the conflicting evidence relating to NDFN’s actions during the October 2014 incident, I prefer to rely on the corroborating statements of NDFN’s wife, her brother and attending police, as obtained from Victoria Police under summons. While NDFN’s wife sought to withdraw her complaint, I do not discount her evidence to police as it relates to the actions of her husband during the October 2014 incident. By his own admission NDFN was drunk and argumentative at the time of this incident. I do not accept his recall of these events, or that his conduct on this occasion shouldn’t have been seen as threatening, or that the police misconstrued his actions, or that he was holding a knife for the sole purpose of cutting a kebab. I accept the Respondent’s submission that NDFN has sought to downplay his conduct in relation to the October 2014 incident, which reflects adversely on his character.
But NDFN’s criminal convictions are only one indicator of his character. Black CJ, Hill and Hely JJ have explained that considerations of criminal and general conduct are not mutually exclusive when considering matters arising from the operation of section 501 of the Act (Wong vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440 at [33]):
…As a matter of construction it seems to us that conduct can now be both general and criminal at the same time so that the Minister may take into account both conduct which is criminal conduct and conduct which is general conduct…The concepts of criminal conduct and general conduct referred to cannot, now, be considered to be mutually exclusive…
In addition to NDFN’s criminal convictions, I note that the G-Documents contained copies of his Protection Visa application and two incoming passenger cards, which he signed on entry to Australia in 2012 and 2013. The dates on these documents post-date his UK convictions by at least seven years. In response to the question on his incoming arrival cards: ‘Do you have any criminal convictions,’ NDFN marked the ‘No’ box on both. In his Application for a Protection Visa dated 14 March 2014, Question 9 asks whether any applicant had ‘ever committed or been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?’ NDFN marked the ‘No’ box and in signing the application, declared that the information provided was ‘complete, correct and up-to-date in every detail.’ He also acknowledged the provision of false or misleading information may result in his application being ‘refused, and any visa issued may be cancelled.’ In a separate Form 866C dated 14 March 2014, which detailed his claims for protection, NDFN marked ‘n/a’ in response to each enquiry at question 66, including whether he had ‘been convicted of a crime or any offence in any country?’ In signing this form, NDFN also declared that the information was ‘complete, correct and up-to-date in every detail’ and that he understood the provision of false or misleading information may result in his application being ‘refused, and any visa issued may be cancelled.’ .
At the hearing, NDFN admitted that his responses on the incoming passenger cards and visa application did not include his UK traffic offences as required, but that was because he ‘didn’t know that a traffic offence was a serious criminal offence.’ While that explanation may be plausible in relation to the incoming passenger cards, which ask applicants to reveal any ‘criminal convictions’, I consider his explanation less plausible in relation to the questions in his Protection Visa application and Form 866C. The questions posed in these latter forms are much more specific, requiring applicants to confirm if they have ‘ever committed or been convicted of a crime or offence in any country’ (emphasis added). In response to my question whether his UK traffic offences were also regarded as offences in Malaysia and Australia, NDFN agreed they were. It is therefore difficult to understand the basis on which he considered only ‘serious criminal offences’ needed to be declared in his Protection Visa application and Form 866C. I do not consider his evidence in this regard to be reliable. That said, I note he subsequently made full disclosures about his convictions to the Department in a letter dated 5 October 2015, when he was asked to complete the health and character requirements associated with his protection visa application.
Witness Evidence
References in support of a person, whose character has been called into question, can help inform judgements by administrative decision-makers. As Davies J noted in Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425:
If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
Prior to being taken into immigration detention NDFN worked as a health worker, both in a major metropolitan hospital and in an aged care setting. He was also involved in a cultural group linked to his ethnic identity and with charitable organisations like the St Vincent de Paul Society and Salvation Army. I have had regard to the following evidence in support of NDFN:
(a)A letter from NDFN’s manager in a major metropolitan hospital dated 6 January 2017, describes him as a ‘reliable and competent member of staff,’ who is ‘trustworthy, respectful and responsible in his care of vulnerable patients.’
(b)A Statutory Declaration dated 1 May 2017 from a clinical assistant who has worked with NDFN in a major metropolitan hospital, states that he has ‘learned from his mistakes…I know that [NDFN] has stopped drinking completely since then. He has been living with his mother, going to the gym and living a healthy lifestyle. I know that he completed his community service as part of his Community Corrections Order…. I do not believe that [NDFN] deserves to be in detention. He is a good person.’
(c)A Statutory Declaration dated 1 May 2017 from a nurse who has worked with NDFN in an aged care setting, describes him as ‘a man of good character and a responsible member of society,’ who ‘deserves to stay in Australia.’
(d)A letter from a representative of the St Vincent de Paul Society dated 31 December 2016, describes NDFN as ‘a faith-oriented person with a generous spirit who is committed not only to his family but to those in his care…[and is]…a truthful and hard-working person of good character, who is a real asset to our community.’
(e)A Statutory Declaration dated 8 January 2017 from a Salvation Army employee who worked with NDFN during the completion of his Community Correction Order (CCO), states that he ‘gets on well’ with staff and customers alike, displays ‘a good attitude to his work,’ has ‘a very caring nature’ and would ‘be an asset to any profession he chooses.’
(f)A letter from a representative of NDFN’s cultural group dated 5 January 2017, states that he ‘voluntarily serves the [ethnic group] community,’ is ‘dedicated, honest, has high moral values… [and]… displays the admirable qualities of leadership, character and the principles that adhere to our society.’
(g)Other supportive Statutory Declarations from work colleagues, friends and a neighbour within the G-documents.
Statements by NDFN’s family members
In considering references from family members, I am mindful of the fact that they often tend to support one another and regularly provide the best possible perspective in relation to what other members of Australian society might consider unacceptable conduct. Care must therefore be taken about the weight placed on references from family members. But I note that members of his family consistently recount the impact of an abusive home life in Malaysia, for which his mother, brother and sister have been granted Australian Protection Visas. Key aspects of the statements from NDFN’s family members follow:
(a)NDFN’s Wife: NDFN’s wife provided a Statutory Declaration dated 10 January 2017, but did not attend or give evidence at the hearing and was not cross-examined. She describes their married life as ‘not… easy’ due to her parent’s disapproval of their union on ethno-cultural grounds. She attests to the violent and abusive home life NDFN was subjected to prior to leaving for the UK and before his move to Australia. She also refers to his excessive use of alcohol as a means of escaping bad memories, which contributed to their volatile arguments. NDFN’s wife contends, however, that he was not violent towards her, and although she is unsure how their relationship will evolve in the future, she considers NDFN to be a ‘good person’ who is ‘more mature,’ has made ‘positive changes…and wants to do things right now.’ Her claim that NDFN has not been violent towards her, however, is inconsistent with her calls for police assistance, the Family Violence Intervention Order taken out on her behalf, and the evidence she and her brother gave to police immediately after the October 2014 incident. Due to her non-attendance at the hearing, these matters could not be tested in cross-examination. I have therefore chosen to treat her evidence to the Tribunal with caution.
(b)NDFN’s Mother: NDFN’s mother provided a Statutory Declaration dated 26 April 2017 and two others dated 8 January 2017 and 20 December 2007, which were accepted into evidence without objection. She gave oral evidence at the hearing through an interpreter. Her 2007 Statement sets out her difficult circumstances in Malaysia, for which she and two of her children were granted protection in Australia. The other two statements are supportive of her son, who she submits was under great stress at the time he committed his offences, but is now remorseful and has substantially changed his ways in the intervening period. She describes the anguish of losing contact with her son after fleeing abusive circumstances and the happiness of their reunion in Australia. She attests to the positive changes in NDFN resulting from strong family support, satisfying work, good friends, regular exercise, and a re-connection with their culture. She states that her son’s uncertain immigration status is affecting their family ‘very badly,’ and expressed her ‘fullest support’ in helping NDFN lead a law-abiding life. She states that her son used to provide financial assistance to their household, which is reflective of his caring nature: ‘If he sees someone in need, he will always share with them.’
(c)NDFN’s Step-Father: NDFN’s step-father, a priest, provided Statutory Declarations dated 26 April 2017 and 7 January 2017, which were tendered into evidence without objection. He was not called to give evidence. He details his role as a replacement father figure, highlights the positive changes he has seen in NDFN since his convictions, and expresses his personal commitment to support NDFN in living a responsible and law-abiding life.
(d)NDFN’s Brother and Sister: NDFN’s brother and sister provided Statutory Declarations dated 8 January 2017 and 9 January 2017 respectively. Both highlight the stresses on their family resulting from NDFN’s legal and immigration difficulties, contending that he has changed in positive ways following his convictions. His sister submits that ‘losing him again would be heartbreaking,’ and that she would do her ‘best to help him and be there for him by encouraging him not to fall into such situations in the future.’
Consideration – Does NDFN Fail the Character Test?
In determining whether NDFN passes the character test, Lander J (Carr and Sundberg JJ concurring) relevantly explain the nexus between the character test and Parliament’s intent, in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105] (Akpata):
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
Since Akpata, amendments to the Act in 2014 have omitted the word ‘significant’ from section 501(6)(d) of the Act meaning that the section is engaged if a decision-maker concludes there is a risk of the person engaging in criminal conduct (emphasis added). However, as Senior Member Fice explained in ReKLLV and Minister for Immigration and Border Protection [2016] AATA 896, at [51], the risk must be ‘real and not fanciful or remote.’
Many positive things have been said about NDFN during the course of this hearing, particularly about the salutary effect of his criminal convictions and the steadying influence of family, work, friends, rehabilitation courses, and a re-connection with his culture. Due regard has been given to the supportive witness statements and other evidence of his good conduct, including expressions of remorse, completion of his Australian CCO and mandated courses, and the valued contribution he makes as a health worker. I acknowledge NDFN’s submission that he intends to live a peaceful and law-abiding life in the future, and his family’s stated commitment to support him in this regard.
But I also note that NDFN did not complete the community order imposed for his UK convictions, resulting in his sentence being varied with more stringent conditions. In Australia he pleaded guilty to contravening a family violence final intervention order, assault with a weapon, and two counts of assaulting police on duty. These are relatively serious crimes. Moreover, the material obtained under summons from Victoria Police relating to these convictions, casts a more negative light on NDFN’s conduct than he accepts in his statements and oral evidence. It is certainly not to his credit to continue suggesting that his wife and the police misconstrued his actions during the October 2014 incident.
It is a matter of fine judgement as to when a conviction is considered to be in a person’s past, but I note that NDFN only completed his CCO relatively recently, which was active when the Department issued him with a notice of intent to refuse his visa application. I have also previously concluded that his contention about failing to declare his UK criminal convictions in his Protection Visa application was unreliable at best.
NDFN’s criminal conduct as evidenced by his recorded convictions, efforts to downplay that conduct as innocent actions misconstrued by others, and failure to declare his UK traffic offences in his Protection Visa application, reflects adversely on his character. It leads me to conclude that he does not pass the character test.
Having made that finding, I must make a supervening determination regarding the discretion granted by section 501(1) of the Act. That requires application of the following primary and other considerations in Part B of the Direction, to the specific circumstances of NDFN’s case.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of the Direction states:
(1) When considering protection of the Australian community, decision-makers 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
Paragraph 11.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. The following factors are relevant to the specific circumstances of NDFN’s case:
(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…or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)...
(d)…
(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.
The Respondent accepts that NDFN does not have a substantial criminal record, relying instead on section 501(6)(d)(i), in that there is a risk he would engage in criminal conduct if allowed to remain in Australia. NDFN’s Australian offences occurred within seven months of formally undertaking, at paragraph 65 of his Protection Visa application, to respect Australia’s values and obey Australian laws. The nature of his convictions is clearly inconsistent with that undertaking. I accept that there is no evidence that NDFN inflicted physical harm on either his wife or the police during the October 2014 incident, notwithstanding the unacceptable nature of his conduct. But I also accept that family violence can be serious even when it does not involve physical violence.
NDFN contends that the circumstances of the October 2014 incident, and the frequent arguments in the previous month with his wife that resulted in an Intervention Order, occurred during a time of great stress. He submits the stress resulted from family problems, financial difficulties, work pressures, uncertainty regarding the outcome of their protection claims, the memories of abusive circumstances in Malaysia, and over-consumption of alcohol as a coping mechanism. As detailed in witness statements, his description of those difficult circumstances is supported by a number of family members and friends. However, I do not consider that stressful circumstances justify recourse to criminal conduct or failing to fully disclose required information in immigration documents.
In relation to NDFN’s failure to disclose his UK traffic offences, counsel for NDFN submitted that this should not bear upon the assessment being undertaken in this application. Paragraph 11.1.1(1)(h) of the Direction, however, specifically requires consideration of such matters. A failure to truthfully complete immigration documents has been viewed seriously by the Tribunal in previous cases, including by Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at [155-156]:
‘The observance of truth in dealing with officials in migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications...’
NDFN’s provision of incorrect responses to the Department in his Protection Visa application is inconsistent with maintaining the integrity of Australia’s immigration system. Section 234 of the Act makes it an offence to provide false documents or false and misleading information to an officer of the Department, ‘in connexion with the entry, proposed entry or immigration clearance, of a non-citizen…into Australia…or with an application for a visa or a further visa permitting a non-citizen…to remain in Australia.’ The maximum penalty for such an offence is ‘imprisonment for 10 years or 1,000 penalty units, or both.’ Although NDFN has not been charged with or found guilty by a court of such an offence, his failure to initially disclose his UK offences bears upon my consideration of the nature and seriousness of his conduct. I accept, however, that he did subsequently disclose his UK traffic offences when asked by the Department to provide evidence regarding health and character in support of his Protection Visa application, and there is no evidence to suggest he has repeated that immigration misconduct.
Pursuant to paragraph 11.1.1(1)(i) of the Direction, I note that NDFN’s traffic offences in the UK have comparator offences here. Australians reasonably expect that visa applicants will not drive while over the legal alcohol limit, or operate an unregistered vehicle, or drive without a licence. The low tolerance in the Australian community for anyone who engages in drink-driving is understandable, given the all-too-frequent reports of death or serious injury on our roads. That said, I accept that NDFN’s UK traffic offences relate to a single traffic stop over 12 years ago and he has not repeated those offences in the intervening period.
NDFN’s criminal conduct in Australia was not considered sufficiently serious to result in a custodial sentence. He was assessed as suitable for a CCO, which he completed in conjunction with 100 hours of unpaid community work. A supervision condition was not recommended as part of his CCO. That sentence and the absence of any supervision conditions is clearly at the lower end of available punishments. Importantly, he has not re-offended following the single incident in October 2014 that resulted in his convictions. There is also no apparent trend of increasingly serious offences, or the cumulative effect of repeat offending. There is no evidence to suggest he has engaged in misconduct while in immigration detention.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction states:
(1) 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.
(2)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.
(3)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, taking into account:
(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.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.
Annex A (Section 2, Clause 6(3)) of the Direction provides guidance in relation to assessing the risk of future conduct:
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.
In considering the available evidence, my assessment of NDFN’s risk of committing further offences or engaging in other serious conduct is informed by a number of factors, including the seriousness of his past offending and whether he has repeated the conduct for which his character has been called into question. Were he to repeat that conduct, the nature of harm to his wife, the police and to other drivers on our roads could be serious. The Australian community’s tolerance for the risk of such future harm from visa applicants is understandably low.
The Respondent contends that there is a significant risk that NDFN will reoffend. In the Respondent’s Statement of Issues, Facts and Contentions, however, it is acknowledged that as ‘…regards the likelihood of recidivism…there is no evidence to suggest that this is high.’
In accordance with the Direction, I must consider information and evidence from independent and authoritative sources on the likelihood of NDFN re-offending. A Psychological Report dated 29 May 2017 by Clinical Psychologist Dr Michael King, was lodged with the Tribunal and served on the Respondent two days prior to the hearing. The report was prepared by Dr King after a single consultation with NDFN at the immigration detention facility on 26 May 2017. The report did not fully comply with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence (Tribunal’s Guideline) dated 30 June 2015, because amongst other things, it did not include a letter of instruction pursuant to paragraph 4.1(b) of the Tribunal’s Guideline.
In his oral evidence Dr King initially stated there was no letter of instruction, because he had been asked to produce his report at very short notice by NDFN’s legal representatives. He explained that he was commissioned on a ‘less formal’ basis approximately a week before the hearing. He submitted that in the absence of detailed instructions, he considered his role was to determine ‘what sort of person do we have here’ and to ‘make comment on recidivism possibilities or probabilities.’ Dr King stated that he administered a number of tests on intellectual and cognitive performance to NDFN on Friday, 26 May 2017, on which he based his conclusions.
Notwithstanding his earlier evidence that his report was not initiated by a letter of instruction, Dr King later remembered that he had received a letter of instruction and produced it from his file. A copy of the letter of instruction dated 24 May 2017 was tendered by counsel for NDFN. Copies were made for the Respondent and Tribunal during a brief adjournment. On return from the adjournment I expressed my concerns about the letter of instruction, which requested that Dr King:
‘…prepare a psychological report addressing the following below mentioned factors and send it to our office as soon as possible.
Factors the Psychological Report Must Cover
·Undertake a retrospective psychological analysis of [NDFN’s] prior mental state, during his commission of offences, and a current psychological analysis. It is hoped that such analysis will demonstrate that [NDFN’s] current psychological state has improved.
·Present evidence that suggests that [NDFN] has been rehabilitated. Please note that he has completed rehabilitative course/s.
·Emphasise that [NDFN’s] improved psychological condition strongly suggests that there is less than a ‘very low’ or ‘remote’ possibility of recidivism.
·Emphasise that should [NDFN] be permitted to re-enter the Australian community, he will not present a risk of harm. This is because his psychological state has improved, he is remorseful and or has insight into his previous behaviour, he has made amends with the victim of his previous behaviour and has moved on. This indicates that he has learnt from his past errors and is unlikely to reoffend.
·Please suggest that ongoing psychological sessions will help prevent any future criminal or serious conduct by [NDFN].”
The concerns I expressed following the adjournment relate to the nature of the letter, the fact that it had only been disclosed during Dr King’s oral evidence, and the methodology Dr King was asked to employ by the instructing solicitor, with whom it appeared he had an existing professional relationship. In written closing submissions, counsel for NDFN submitted that ‘given the urgency of the matter, the broad content of the letter of instruction appeared to have been initiated by Dr King.’ That contention in no way eased my concerns regarding Dr King’s report. Whoever drafted the letter did so in a way that appears to list desired post-consultation findings, prior to Dr King’s only consultation with NDFN. Counsel for NDFN further contends that: ‘Notwithstanding the unusual way that this came about, the sworn evidence of Dr King was that the wording of the letter of instruction did not influence him in any way in the manner in which he went about his task, nor in how he compiled his report.’ I do not accept that evidence – particularly if, as counsel for NDFN contends, Dr King himself drafted the letter of instruction.
As detailed in paragraph 3.1 of the Tribunal’s Guideline, a person giving evidence to the Tribunal based on their special knowledge or experience, ‘has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience,’ and ‘is not an advocate for a party to a proceeding.’ I do not consider that the letter of instruction to Dr King, however conceived, is reflective of that duty.
In addition to my concerns regarding the letter of instruction, I was unconvinced by Dr King’s claim that despite having never met NDFN before 26 May 2017, he was nevertheless able to provide a retrospective psychological analysis of his state of mind when committing offences over two years earlier. Dr King’s stated methodology was to determine NDFN’s future behaviour and risk of recidivism as ‘projected from past events.’ Three different forms of assessment were used by Dr King to evaluate NDFN’s mental state and personality around the time of his criminal offences in October 2014, at the present time, and in the future. Dr King was cross-examined for an extended period and I also put a number of questions to him regarding the letter of instruction and his methodology. I was not ultimately satisfied that Dr King’s answers resolved my concerns to the point that I could rely on his conclusions. After considering Dr King’s written and oral evidence, and the submissions of the parties, I decided to afford his report no weight.
Paragraph 11.1.2(3) of the Direction requires that I have regard to any evidence of rehabilitation. I note an Order Completion Report from the Department of Justice dated 31 March 2017, confirming NDFN’s CCO was formally discharged as ‘satisfactorily completed.’ I also note his CCO Assessment Report dated 23 June 2015, where a representative of the Victorian Department of Justice states:
[NDFN] attended for his assessment today as directed. [NDFN] engaged well and cooperated with the writer. [NDFN] reported that he was embarrassed and ashamed for his actions towards his partner. [NDFN] provided good insight into his offending behaviour.
[NDFN] was assessed as low risk of reoffending and suitable for a Community Corrections Order today and a supervision condition is not recommended… (emphasis added)
That assessment was in the context of advice to the Magistrate’s Court regarding NDFN’s suitability for a CCO. The evidence shows that NDFN subsequently displayed a positive attitude in completing his CCO and has undertaken behavioural programs required by the Magistrates Court – particularly a 2.5 hour session titled: ‘Alcohol: Considering Change?’ and a 12-week Men’s Behaviour Change course. Although Dr King’s report refers to other ‘counselling’ undertaken by NDFN, he confirmed during cross-examination that this was self-reported by the Applicant and he had no specific knowledge of any other counselling undertaken.
In weighing the risk of NDFN re-offending, I have noted in particular the evidence that he has moderated his alcohol intake. This appropriately reflects NDFN’s acknowledgement of the correlation between his overconsumption of alcohol and criminal conduct. He submits that prior to the October 2014 incident he ‘used to drink every week whenever [he] had time off work,’ but after the incident he ‘cut down to just a few times a month’ and currently is ‘not drinking alcohol at all and [has] not done so for several months.’ That evidence is supported by members of his family and friends – including his wife, who was a victim of his offending. In his oral evidence, NDFN acknowledged that he has ‘abused the privilege’ given to him and accepts that people were hurt by his behaviour, which was ‘unacceptable.’ He states that the convictions arising from the October 2014 incident were a ‘wake up call’ and the rehabilitative opportunities afforded by his CCO have helped him change his life and in particular to ‘stop abusing alcohol.’ He submits that he has learned from the rehabilitative programs he has undertaken, including techniques on how to control anger and ‘triggers for anger, such as alcohol.’ He contends that he is a different person than when he committed these offences and undertakes that he ‘…will never get [himself] in a situation again where [he] will behave like this in the future.’
I acknowledge that there has only been a relatively brief period of time since NDFN completed his CCO and was taken into immigration detention, to demonstrate the longer-term durability of the changes he claims to have made. I acknowledge the submissions of counsel for the Respondent in this regard, that NDFN’s ‘efforts at rehabilitation have not been properly tested.’ Counsel for NDFN submits ‘that the relevant period to consider is from the date of his offending to the date of his entry into detention (and up to the present because there is no suggestion of adverse behaviour in detention…).’ It is one thing, however, to demonstrate good conduct while serving a CCO or after being placed in immigration detention, and another to demonstrate an extended period of lawful, positive contribution to the Australian community, unencumbered by the consequences of previous inappropriate conduct. The latter attracts greater weight in my view, although I have previously noted that NDFN has not re-offended in relation to any of his convictions, nor is there any evidence of misconduct while he has been in immigration detention.
NDFN also submits in his Statutory Declaration dated 10 January 2017, that even though he and his wife have argued since his convictions, he no longer resorts to inappropriate behaviour:
‘we resolve things peacefully. We have not had any more altercations where she felt the need to involve the police…I do not get drunk anymore, which was previously a big source of conflict between us and I know that talking about our problems is much better for us than shouting at each other.’
NDFN’s wife states in her Statutory Declaration dated 10 January 2017, that ‘he doesn’t get drunk like he used to,’ and ‘is more mature now in his response to an argument.’ I accept her evidence in this regard and that of other witnesses, that NDFN has substantially moderated his intake of alcohol since the October 2014 incident, resulting in a more mature approach to conflict.
Pursuant to paragraph 11.1.2(3)(b)(iii) of the Direction I must consider the duration of NDFN’s intended stay in Australia. I note that he intends to remain permanently under a Protection Visa, which I have taken into consideration in assessing the risk he poses to the Australian people.
NDFN expresses remorse in his Statutory Declarations and oral evidence in relation to the conduct resulting in his criminal convictions, and how he has used it as a catalyst to change his ways. But at times his remorse is couched in terms that seek to deflect responsibility for his actions to others. For example:
(a)In his Statutory Declaration dated 27 April 2017, he states that he is sorry because his wife ‘felt threatened and that the police took our situation to be one of violence.’
(b)In his Statutory Declaration dated 10 January 2017, he states: ‘I accept that any incident that makes someone feel unsafe is serious, however, as I explained at that time, I had a knife in my hands because I was cutting a kebab in the kitchen. I did not intend to use it to threaten my wife or the police and I am sorry that it was seen in this light by the police…’
(c)In his Statutory Declaration dated 23 September 2015, he states: ‘…the police took this as a threat to them…she had called the police just to get help to calm me down.’
I consider that these conditional expressions of remorse don’t fully accept responsibility for NDFN’s conduct and the convictions arising from it. They reflect incomplete insight into his previously unacceptable conduct. But I note that during his CCO assessment, he expressed embarrassment and shame regarding his actions towards his partner and was seen to have good insight into his offending behaviour. During the hearing he also expressed remorse and contrition regarding the inappropriateness of his previous behaviour and how that constituted an abuse of the opportunities he had been given in Australia.
Counsel for the Respondent contends that ‘the circumstances that gave rise to NDFN’s offending conduct in 2014 have not repeated themselves,’ and therefore his ‘…ability to live harmoniously in a marital home simply has not been tested.’ Given the evidence that NDFN’s relationship with his current wife is unlikely to endure, I do not accept that the test to be reasonably applied to his future risk of re-offending, turns on his demonstration of harmonious conduct in a new marital relationship. I note his wife’s evidence that since the October 2014 incident they have lived together on and off, and there is nothing to suggest that NDFN has again engaged in the sort of behaviour that previously caused her to call for police assistance.
There are a number of factors in the available evidence that act to mitigate NDFN’s risk of re-offending in the future:
(a)The first is the consequences likely to arise for NDFN if he does re-offend. He and members of his family fled difficult and abusive circumstances in Malaysia. With the exception of NDFN’s offending on a single occasion in October 2014, the evidence before me is that NDFN and members of his family have made a positive contribution to our community. He is regarded as a valued employee in the healthcare sector and his mother and sister work in the same industry. His brother is a company director and his step father is a priest. Were NDFN to re-offend, his immigration status and ability to remain as part of his family would be at even greater risk than is currently the case. I accept the evidence of NDFN and other witnesses that the convictions arising from a single event in October 2014 have been the catalyst for personal change, strengthening his determination to better appreciate the opportunities he has been given in Australia.
(b)Second is the re-establishment of previously lost bonds with his family. Prior to being taken into immigration detention NDFN had separated from his wife and lived with his mother, stepfather, and two younger siblings in a mutually-supportive environment. He intends to continue that arrangement if his application is successful, and the evidence of his family is that they will continue to support and strengthen his resolve to live a lawful life.
(c)Third is NDFN’s establishment of a relationship with his stepfather, who he describes as ‘the first positive father figure I have ever had.’
(d)Fourth is the beneficial influence of NDFN’s role as a health worker since 2014, after completing a Certificate III in Aged Care. Given the statements tendered on his behalf by supervisors and work colleagues, I accept that his associations at work impart a positive group influence.
(e)Fifth is NDFN’s involvement in community service, his cultural community, and regular exercise, which help strengthen his resolve to cease over-consumption of alcohol – which was a common feature in his criminal conduct. These are positive indicators that help inform judgements about NDFN’s risk of re-offending.
In assessing the competing views relating to NDFN’s risk of re-offending, I acknowledge that where a person has committed offences, there is always some risk they may do so again. On applying the Direction to the specific circumstances of NDFN’s case, however, I conclude from the available evidence that NDFN’s risk of repeating the conduct for which his character has previously been called into question, is very low. He hasn’t repeated the offences arising from single incidents in the UK and Australia. There is no evidence to suggest he has repeated his incorrect responses in his visa application. He has completed his CCO and mandated rehabilitative programs, and his resolve not to re-offend is strengthened by a number of positive factors and influences.
As the Direction implicitly acknowledges, the Australian community’s expectations include the acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides. I therefore find that the risk posed by NDFN, given the specific circumstances of his case, is not unacceptable.
Mindful of the framework principles and after considering the nature and seriousness of NDFN’s conduct, coupled with an assessment of the risk he poses to the Australian community, I find that the primary consideration of protecting the Australian community weighs marginally in favour of not refusing his visa application.
Best interests of minor children in Australia
Paragraph 11.2 of the Direction requires that I consider whether refusal of NDFN’s visa application is, or is not, in the best interests of minor children affected by the decision. On the evidence before me, no minor children are involved in NDFN’s case, so no weight is placed on this primary consideration.
Expectations of the Australian community
Paragraph 11.3(1) of the Direction states:
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.
Consistent with the Direction, there is an expectation in the Australian community that non-citizens will respect Australia’s laws. In this regard I note the framework principles within the Direction highlight the Australian community’s low tolerance for visa applicants who engage in criminal conduct – particularly those who have been participating in, and contributing to, the Australian community for only a short period of time.
In NDFN’s case, he was in Australia for approximately 18 months before applying for a Protection Visa, in which he formally undertook to respect Australia’s values and obey Australia’s laws. He then committed offences within seven months of making that undertaking. As his convictions in Australia and the UK demonstrate, he has not consistently respected important institutions in Australia such as our law enforcement framework.
I acknowledge that NDFN has made positive contributions to Australia during his four years here, particularly through his work in healthcare. But the evidence shows he has not always been law-abiding, has caused and threatened harm to individuals in the Australian community, and did not initially provide accurate responses about his UK traffic offences in his visa application. The Australian community would expect the Australian Government to refuse entry to non-citizens who engage in such conduct. I therefore find that the primary consideration of expectations of the Australian community, weighs in favour of refusing NDFN’s visa application.
OTHER CONSIDERATIONS
International Non-refoulement obligations
Paragraph 12.1(1) of the Direction requires consideration of whether an obligation exists ‘not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.’ That consideration applies to NDFN’s case, because in February 2015 he was assessed to be a person in respect of whom Australia has protection obligations. Consequently, in the event that his Protection Visa application is refused, he could not be returned to Malaysia without breaching Australia’s non-refoulement obligations, assuming that the circumstances in Malaysia that gave rise to his accepted protection claims had not changed.
Paragraph 12.1(2) of the Direction makes clear that the existence of this obligation does not preclude refusal of a visa, because Australia will not remove a non-citizen as a consequence of such refusal, to the country in respect of which the non-refoulement obligation exists. The Direction nevertheless requires careful weighing of Australia’s obligations in this regard, against the seriousness of NDFN’s criminal and other conduct, in deciding whether he should be granted a visa. As paragraph 12.1(6) of the Direction recognises, the operation of sections 189 and 196 of the Act means that if NDFN’s Protection Visa is refused, the potential consequence is one of ‘indefinite immigration detention.’ The detention is potentially ‘indefinite’ because of the uncertainty about how it might end. Conceivably, it could end with removal of NDFN to a safe third country that was willing to accept him, or it could end if the Minister decided to exercise a non-compellable discretion, such as the granting of a temporary visa under section 195A of the Act, or a residence determination under section 197AB. Relevantly, a temporary visa may be granted by the Minister with or without application if he ‘thinks that it is in the public interest to do so’. Moreover, the Minister ‘does not have a duty to consider whether to exercise the power’ to grant a detainee a visa, and the power ‘may only be exercised by the Minister personally’.
The Full Court of the Federal Court has previously held that the possibility of indefinite detention is not a mandatory consideration in certain circumstances. In Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, Allsop CJ, Griffiths and Wigney JJ stated at 71 that:
‘in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;’
During opening submissions, however, counsel for the Respondent highlighted a recent development in the law affecting non-refoulement and the meaning of indefinite detention. This results from the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16), and His Honour’s treatment of the meaning of section 197C of the Act. DMH16 has a number of features common to NDFN’s case as follows:
(a)The applicant is someone in respect of whom Australia owes protection obligations;
(b)The applicant will have no right to make a further application for a visa;
(c)There is no evidence that removal to the country of nationality is not ‘practicable,’ and
(d)A safe third country has not been identified.
In DMH16, the Minister had noted in his reasons for decision that he was:
‘…aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding section 197C of the Act), he may face the prospect of indefinite immigration detention because of the operation of s189 and s196 of the Migration Act.’
The Minister had been advised by his Department that:
‘…You should further note that s197C does not abrogate, for the purposes of Australia’s domestic laws, Australia’s non-refoulement obligations assumed under international law by subscription to the Refugees Convention. In general terms, as noted in the explanatory memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, s197C was inserted into the Migration Act with the intention of making it clear that the removal powers under s198 are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.’
North ACJ held, at [26], that:
‘The argument for the Minister only needs to be stated to expose its weakness. The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.
In essence, His Honour held that section 197C of the Act has the consequence of enlivening the obligation at section 198 to remove an unlawful citizen ‘as soon as reasonably practicable,’ regardless of Australia’s non-refoulement obligations. A decision by me, therefore, to affirm the refusal of NDFN’s visa would, unless the Minister had made a preliminary decision to consider the exercise of his non-compellable discretion, enliven the obligation to remove NDFN as soon as reasonably practicable. As Counsel for the Respondent pointed out during opening submissions, the legal consequences are potentially significant:
‘…in circumstances where there’s no other safe third country to which the person can be removed, then the obligation would be to remove the person to the country in respect of which they fear harm.’
Counsel for the Respondent submits that the prospect of such an outcome is remote and a decision to affirm the refusal of NDFN’s visa does ‘…not necessarily mean that Australia will…breach its non-refoulement obligations…’ But that submission rests on an alternative management option being exercised by the Minister personally, particularly his power to grant a visa of any class under section 195A of the Act, if he ‘thinks that it is in the public interest to do so.’ I am further invited to accept that while the Minister’s power to issue a visa in these circumstances is non-compellable, ‘the Tribunal should assume that it will be exercised whenever necessary to ensure that Australia does not breach its non-refoulement obligations.’ In relation to the specific circumstances of NDFN’s case, counsel for the Respondent submits it is appropriate that I proceed ‘…on the presumption that the Applicant will be neither refouled nor detained indefinitely, notwithstanding that the former is a theoretical possibility.’
Counsel for the Respondent relies on that submission based on the Australian Government’s stated policy intent regarding non-refoulement obligations at section 197C of the Act, which was reiterated in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [at 1142, 1144, and 1146]:
[1142] Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46 a, 195A or 417…
…
[1144] the Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so. In the exercise of this power the Minister is not bound by the provisions of the Migration Act or Migration Regulations governing application and grant requirements. The Minister has the flexibility to grant any visa that is appropriate to that individual’s circumstances. In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.
…
[1146] The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
Counsel for the Respondent submits that even where removal is ‘practicable,’ the Applicant will not immediately be ‘ready for removal,’ because their actual removal from Australia necessarily depends on various checks and arrangements. Counsel contends that this provides ample time for the Minister to make a preliminary decision to consider exercising his power under section 195A, whereupon removal from Australia ceases to be ‘practicable’ until the statutory process has run its course.
Counsel for NDFN contends that because he is owed protection obligations and cannot be refouled to Malaysia, indefinite detention would constitute ‘a breach of international human rights obligations, albeit one authorised by the Act, at least as long as the purpose of the detention is not punitive.’ Counsel further submits that NDFN’s circumstances are such that continued detention with no possibility of removal is approaching ‘punishment,’ which is disproportionate ‘to the nature of NDFN’s offending conduct, for which the Court imposed a CCO and not a custodial sentence.’
The choice before me in determining the weight I place on non-refoulement obligations, as applied to the specific circumstances of NDFN’s case, can only be based on the available evidence. During opening submissions, counsel for the Respondent advised he was seeking instructions on how the decision in DMH16 might translate into submissions regarding NDFN. He advised that these instructions included the question of ‘…whether there is currently any consideration being given to the exercise of a non-compellable discretion, which would take [NDFN’s] case out of the space of an obligation to remove.’ On that basis I gave leave for written closing submissions to be provided by no later than 5pm on 7 June 2017. No advice was provided to me by that time, regarding any preliminary decision taken by the Minister in relation to NDFN, given the implications of North ACJ’s judgment in DMH16.
I accept that the Australian Government’s stated policy, as detailed in the relevant legislation, makes it a remote possibility at best that Australia’s non-refoulement obligations would be breached, or that NDFN would be detained indefinitely if the decision of the Minister’s delegate to refuse his Protection Visa was affirmed. But in the absence of specific evidence that the Minister intends to exercise his non-compellable discretion in that eventuality, I must afford greater weight to non-refoulement considerations when applied to the specific circumstances of NDFN’s case. I therefore find that Australia’s international non-refoulement obligations weigh in favour of not refusing NDFN’s visa application.
Impact on family members
Paragraph 12.2(1) of the Direction states:
‘Impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.’
In a letter from NDFN’s solicitor dated 5 October 2015, it states that NDFN’s wife, ‘who is also an applicant in this matter, remains supportive of her husband and their future together.’ Since then NDFN has confirmed that he and his wife no longer live together and in closing submissions, counsel for NDFN confirmed that ‘the applicant believes that his relationship with his wife is now at an end.’ As for his other family members, NDFN was only able to re-connect with his mother, brother and sister following their escape from abusive circumstances in Malaysia. He has also developed a close relationship with his step-father. NDFN’s uncertain visa status is a source of considerable anxiety for his family, who value the contribution he makes to their family unit – including a financial contribution for rent and living expenses. In their evidence they particularly highlight the emotional implications if NDFN’s visa application was refused. NDFN’s mother, step-father and siblings express a strong commitment to support him in living a law-abiding life in the future.
The Australian community would be understandably concerned about the impact of visa refusal on NDFN’s mother, step-father and siblings, and I find this is a countervailing factor weighing in favour of not refusing NDFN’s visa application.
Impact on victims
Paragraph 12.3(1) of the Direction states:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behavior, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
There is no specific evidence before me detailing the impact on victims of NDFN’s offending, if a decision was taken to not refuse his visa application. On that basis I therefore place no weight on the impact on victims in deciding whether to refuse NDFN’s visa application
Impact on Australian business interests
Paragraph 12.4(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivers an important service in Australia.”
I note the positive references from two of NDFN’s supervisors and work colleagues regarding his valued role as a healthcare worker, but there is no evidence before me that Australian business interests will be affected by refusal of his visa application. I therefore place no weight on the impact on Australian business interests in deciding whether to refuse NDFN’s visa application.
CONCLUSION
After weighing up all of the evidence and the applicable law, I find that NDFN does not pass the character test as defined at section 501(6) of the Act. In making a supervening determination regarding the discretion granted by section 501(1) of the Act, I have had regard to the relevant considerations in the Direction and applied them to the specific circumstances of NDFN’s case. The available evidence shows that NDFN has not been imprisoned, has not re-offended, has completed mandated rehabilitation courses, enjoys strong family support, makes a valued contribution as a healthcare worker, and is strengthened in his stated resolve to live a lawful life in the future by a number of supportive factors. The primary consideration of protecting the Australian community, coupled with Australia’s non-refoulement obligations and the impact of visa refusal on NDFN’s family, all weigh in favour of not refusing NDFN’s visa application, and outweigh any other considerations in this matter.
DECISION
It therefore follows that the decision under review is set aside and in substitution, it is decided that NDFN’s Protection (Class XA) Visa application should not be refused under section 501(1) of the Act.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
.........................[sgd]...............................................
Associate
Dated: 9 June 2017
Date of hearing: 1 June 2017 Date final submissions received: 6 June 2017 Counsel for the Applicant: Mr G Gilbert Solicitors for the Applicant: Mr N El-Bardouh
Bardo Lawyers
Counsel for the Respondent:
Mr J Forsaith
Solicitors for the Respondent:
Ms A Allan
Sparke Helmore
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