NKWF and Minister for Immigration and Border Protection (Migration) - [2017] AATA 813

NKWF and Minister for Immigration and Border Protection (Migration) [2017] AATA 813 (7 June 2017)
Division:GENERAL DIVISION
File Number: 2017/1698
Re:NKWF
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Ms LM Gallagher, Member
Mr S Rafferty, Member
Date:7 June 2017
Place:Perth

The decision under review is affirmed.
........[Sgd]................................................................
Ms LM Gallagher, Member
CATCHWORDS
IMMIGRATION – request for Safe Haven Enterprise Visa (Class XE) – visa refusal pursuant to section 501(1) of the Migration Act 1958 – character test – offences involving vulnerable members of the community – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – nature and seriousness of the conduct – risk to the Australian community should further offences be committed - other relevant considerations – international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 – sections 189, 195A, 196, 197AB, 197AE, 197AF, 197C, 198, 499(2A), 500(1), 501(1)(b), 501(6), 501(7)
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6.1, 6.2, 6.3, 7(1), 8(1), 11(1), 11.1, 11.1.1, 11.1.2, 11.2, 11.3, 12(1), 12.1
CASES
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
SECONDARY MATERIALS
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
REASONS FOR DECISION
Ms LM Gallagher, Member
Mr S Rafferty, Member
7 June 2017
INTRODUCTION

This is an application lodged under section 500(1)(b) of the Migration Act 1958 (the Migration Act) for a review of a decision of a delegate for the Minister for Immigration and Border Protection (the Minister) dated 21 March 2017 (G4 at 9) that refused to grant NKWF a Safe Haven Enterprise (Class XE) visa (the visa) pursuant to section 501(1) of the Migration Act. Relevantly, the delegate found that NKWF had been sentenced to a term of imprisonment of 12 months or more and hence had a substantial criminal record as per section 501(7)(c) of the Migration Act. Therefore, NKWF had not satisfied the delegate that he passed the character test by virtue of section 501(6)(a) of the Migration Act.
Having found that NKWF had not satisfied the character test, the delegate considered whether to refuse NKWF the visa as per the requirements of Ministerial Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65). The delegate refused to grant NKWF the visa.
BACKGROUND FACTS AND PROCEDURAL HISTORY
NKWF is a 34 year old male citizen of Afghanistan (G11 at 42). He arrived in Australia on 1 November 2012 as an Illegal Maritime Arrival (G15 at 82). On 25 June 2014 the Applicant was granted a Bridging (General) visa E (subclass 050), which ceased on 25 June 2015 (G27 at 268). He has remained in Australia since his arrival and unlawfully so since 26 June 2015.
On 1 February 2016, the Applicant was convicted of armed robbery in the Supreme Court of Western Australia and sentenced to 2 years and 3 months imprisonment fully suspended for a period of 15 months (G9 at 24 and G18 at 94). The offence giving rise to the conviction took place on 19 June 2015 (G27 at 268), when the Applicant robbed a taxi driver at knifepoint (G18 at 91).
On 26 May 2016 the Applicant applied for the visa (G11 at 28).
On 23 December 2016, NKWF was sent a Notice of Intention to Consider Refusal under section 501(1) of the Migration Act (G16 at 83). That notice invited NKWF to comment on or provide information on whether he passed the character test (G16 at 84).
On 6 January 2017, the Department of Immigration and Border Protection (the Department) sent NKWF a letter inviting him to comment on the sentencing remarks of the Supreme Court of Western Australia dated 1 February 2016 (G17 at 86 and 89).
On 3 February 2017, Ms Dubauskas-Reed, of Playfair Visa and Migration Services, wrote to the Department of behalf of the Applicant (G19 at 95). The letter provided a number of submissions as to why the delegate for the Minister should exercise its discretion to grant the visa to NKWF.
On 21 March 2017, a delegate for the Minister refused to grant the visa to the Applicant (G4 at 9 and G6 at 18).
As a result of this refusal, the Applicant became an unlawful non-citizen and was detained pursuant to section 189 of the Migration Act.
On 25 March 2017 (G1 at 1), NKWF applied to this Tribunal for review of the decision to refuse his visa.
ISSUES
The issues for consideration by this Tribunal are:
(i)Whether NKWF passes the “character test”; and
(ii)If not, whether NKWF’s visa should be refused, taking into account the relevant considerations in Direction No. 65.
EVIDENCE
This matter was heard in Perth on 29 May 2016. NKWF appeared in person and was self-represented. The Minister was represented by Mr Gerrard.
The evidence before the Tribunal consisted of:
·A written statement from NKWF dated 21 April 2017 (A1);
·A Statement of Facts, Issues an Contentions from the Minister dated 26 April 2017;
·A 348 page set of G documents (G1 to G31) (R1);
·The Supreme Court of Australia, Transcript of Proceedings At Perth on Thursday, 28 January 2016, at 10.18am, complete transcript pages 1-10 (R2);
·Letter from Legal Aid dated 28 April 2017 to NKWF regarding DPP dismissal of charge relating to possession of prohibited substance (R3);
·Torture and Trauma Assessment report dated 10 May 2017 by detention centre trauma counsellor (R4); and
·Certificates of Attainment from Auswest Specialist Education and Training Services, for NKWF completed during his detention (R5).
The Tribunal has reviewed all of the material before it. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
CONSIDERATION
(i) Does NKWF pass the character test?
The Tribunal must first consider whether NKWF passes the “character test” as that term is defined in section 501(6) of the Migration Act.
Pursuant to section 501(1) of the Migration Act the Minister (and the Tribunal standing in his shoes) may refuse to grant a visa to a person if the person does not pass the “character test” (as defined in section 501(6) of the Migration Act). The Minister’s power in section 501(1) of the Migration Act is discretionary.
Subsection 501(6)(a) of the Migration Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection (7)).
Subsection 501(7)(c) of the Migration Act relevantly provides that for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
As noted above, on 1 February 2016, NKWF was convicted of armed robbery in the Supreme Court of Western Australia and sentenced to 2 years and 3 months imprisonment. The sentence was fully suspended for a period of 15 months.
As a consequence of receiving a sentence in excess of 12 months, NKWF is deemed to have a substantial criminal record and does not pass the “character test” set out in subsection 501(6)(a) of the Migration Act. NKWF did not assert otherwise before this Tribunal.
Accordingly, on the evidence before it, the Tribunal finds that NKWF does not pass the “character test” as that term is defined in the Migration Act.
(ii) Should the Tribunal exercise its discretion to refuse NKWF a protection visa?
Having determined that NKWF does not pass the “character test” because he has a substantial criminal record having had been sentenced to a term of imprisonment of 12 months or more, the Tribunal must now determine whether to exercise the discretion to refuse NKWF’s visa application.
On 22 December 2014, the Minister, in accordance with its powers under subsection 499(1) of the Migration Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date. It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) states:
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 to 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 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No. 65 provides general guidance to the Tribunal in relation to the exercise of the direction to revoke a decision to refuse a visa. It 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.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out a number of principles, including the following:
6.3 Principles
…
(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.
…
(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.
Sub-paragraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Relevantly, sub-paragraph 7(1)(a) of Direction No. 65 states:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)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 Direction No. 65 states:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case.
In relation to NKWF’s visa application, Part B of Direction No. 65 sets out the considerations that are relevant in exercising the discretion in section 501(1) of the Migration Act in relation to visa applicants. These considerations are addressed below.
Paragraph 11(1) of direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian Community.
Primary considerations
Each of the three “primary considerations” is addressed in relation to NKWF below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to paragraph 11(1)(a) of Direction No. 65 (i.e. protection of the Australian community), paragraph 11.1 of Direction No. 65 provides:
11.1 Protection of the Australian community
(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. [Emphasis added]
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to paragraph 11.1(1)(a) of Direction No. 65 (i.e. the nature and serious of the non-citizen’s conduct to date), paragraph 11.1.1 of Direction No. 65 relevantly provides:
(1)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;
…
(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;
…
[Emphasis added]
In determining whether NKWF’s conduct should be viewed as serious, the Tribunal notes the facts of his offence and the sentences imposed by courts for armed robbery. The Tribunal notes, in particular, the sentencing remarks of His Honour Justice Corboy dated 1 February 2016 (G18 at 90 to 94). His Honour’s summary of NKWF’s conduct, the explanation for the conduct and considerations with respect to sentencing is as follows:
The facts
2. The facts alleged by the State and admitted by you are that in the early hours of 19 June 2015, you caught a taxi driven by […] in the city centre and requested that you be driven to an address in Cannington.
3. When you arrived at your destination, you took a knife from inside your jacket pocket and rested your hand, holding the knife, on […] right shoulder in the area of his throat. You demanded money. […] gave you his wallet. You removed money from the wallet, believed to be between $180 and $200. You then left the taxi.
4. You were arrested later that day. You admitted being in the taxi but denied having committed the offence. You said you had argued with the driver. […] did not receive any injuries, but, understandably, he stated that he had felt really scared during the robbery.
…
Sentencing for armed robbery
11. Armed robbery is a most serious offence. The seriousness of the offence is reflected in the maximum penalty – life imprisonment. The Court of Appeal has noted that a sentence in the range of 4 to 6 years’ imprisonment before any reduction for mitigating factors is customarily imposed for a single offence of armed robbery.
12. Considerations of general deterrence are paramount for sentencing or this type of offence. The range of sentences noted by the Court of Appeal is only a guide. You must be sentenced according to the particular circumstances of the offence and your personal circumstances. However, I consider that the range identified by the Court of Appeal provides the appropriate starting point for determining the sentence to be imposed in your case.
13. A term of imprisonment is ordinarily the only appropriate sentence for armed robbery, having regard to the seriousness of the offence. Further, the Court of Appeal has noted that it is only in exceptional cases that a term of imprisonment that has been imposed should be suspended. Ordinarily, a suspended term of imprisonment is only considered appropriate for a young offender who has not previously committed a serious criminal offence.
Aggravating factors
14. There are factors that aggravate the seriousness of your offence, most importantly the vulnerability of the victim. Taxi drivers provide a necessary service to the community. However, they are particularly vulnerable to this type of offence, especially when working late at night. The need to deter others from robbing such vulnerable persons is a significant factor in sentencing you. Further, you left your house with a knife, and it appears that the offence was planned to some extent
Mitigating factors
15. There are factors, however, that mitigate the seriousness of your offence.
16. First, you have pleaded guilty at the first available opportunity. Accordingly, I will reduce the sentence that would otherwise have been imposed by 25%, pursuant to s9AA of the Sentencing Act 1995 (WA).
17. Second, you have no prior criminal record. You have been in Australia for approximately three years without committing an offence prior to committing this offence.
18. Third, I accept that you have had a very difficult life, caught in the terrible conflicts that have shaped the recent history of Afghanistan, your country of origin, and the surrounding regions. I also accept that you were not motivated by financial gain, and there was no injury inflicted on the taxi driver.
[Emphasis added]

In oral evidence before this Tribunal, NKWF stated that during his time in the community just prior to ‘getting into trouble’ he was living with four other people in a house in Perth. NKWF said that one of the people he lived with was a friend, who he argued with a lot of the time.
NKWF said that at that time, he had become frustrated by the fact that his bridging visa prevented him from working or studying in Australia. NKWF said that he had asked his case worker to enlist him in a course that would enable him to develop a skill, but that course had not started as yet.
NKWF gave evidence that just prior to committing the offence, he had been depressed for a while. NKWF said he had seen his case manager about his mental health but hadn’t seen a doctor. NKWF said he ‘was just hanging in the air’ and asked his case manager to arrange for him to be returned to the detention centre. NKWF said his case manager took him to a doctor, who diagnosed him with depression and anxiety, prescribed him with antidepressants and advised him to see a psychologist. NKWF said he did not follow the doctor’s advice to see a psychologist because ‘he was not in a mental state that he could make a clear decision.’
NKWF said that one or two weeks prior to the incident with the taxi driver, his friend had committed suicide by jumping in front of a train. NKWF said this had made him ‘afraid he would kill himself’ and it was then he decided that ‘he would do something to get him back into detention.’ NKWF recalled that when he had first gone into detention, he had signed something to say that if he broke the law, his bridging visa would be cancelled.
NKWF said that on the night he committed the offence, he had two beers at home, took a butter knife from his house and put it in his pocket. NKWF said he then went to the city, on foot, around midnight.
NKWF said he knew what he was going to do, which was to commit an offence that would have the consequence of returning him to detention. NKWF said it was never his intention to rob or harm the taxi driver, however it was his intention to get into a taxi, with a knife and threaten the driver. NKWF said that while he did take the taxi driver’s money, ‘the money wasn’t the point.’
NKWF said that when he pulled the knife out of his pocket he knew there would be a camera in the taxi capturing his actions.
The Applicant said the next day, he told his case manager about the incident and the police came to his house that night and arrested him.
NKWF said that on the night of his arrest, during his police interview, he denied the offence and told the police that he had just ‘got into an argument’ with the taxi driver. NKWF said while he knew, at that time, he had committed an offence, ‘he did not know it was serious to put a knife to another man’s throat’, he did not appreciate how scared the taxi driver would be but that he knew it would make the taxi driver scared to the point that he would give the Applicant his money. NKWF also said that he denied the armed robbery charge when the police came to arrest him ‘as he wanted to be sure the charge “wasn’t so serious” [Emphasis added].
In response to Mr Gerrard highlighting to the Applicant that he had given evidence that he had committed the offence in order to go back to detention, but then denied the offence to the police, the Applicant said that when the police came, he was awoken from his sleep and asked for his weapon and to put his hands on his head. The Applicant said he was in shock at that time, and didn’t know what ‘armed robbery’ meant, so he denied it. The Applicant said that “if he could have thought of something else less serious he would have done that” [Emphasis added].
NKWF said that his responses to the police’s questions during his arrest were ‘the only thing(s) he could think of.”
When Mr Gerrard noted to the Applicant that the weapon was not recovered because the Applicant did not tell the police about it, the Applicant said he remembered that the police had asked him for a ‘weapon’ (and he did not know what that meant) rather than a knife, although he could be wrong about that recollection.
In relation to NKWF’s offence, the Minister, in turn, in a Statement of Facts, Issues and Contentions dated 26 April 2017, contended as follows:
19. The Respondent contends that the offence for which the applicant was convicted is clearly a serious offence of the type identified in Direction No. 65. The applicant’s offence involved a significant act of violence against a vulnerable member of the community. In this regard, the respondent draws the Tribunal’s attention to the guidance in the Direction at paragraph 11.1.1(1)(a) that decision-makers must have regard to the principle that violent crimes are regarded as particularly serious offences.
…
21. The applicant received a total sentence of 2 years and 3 months in respect of this offence. Whilst, the sentence was suspended for 15 months, the respondent contends that the length of the imposed sentence is an indication of the gravity with which the court viewed the offence. That is further borne out by the statement by Corby J that “[a]rmed robbery is a most serious offence” [G18, p92]. Relevantly, Corby J also noted that:
There are factors that aggravate the seriousness of your offence, most importantly the vulnerability of the victim. Taxi drivers provide a necessary service to the community. However, they are particularly vulnerable to this kind of offence, especially when working late at night. The need to deter others from robbing such vulnerable persons is a significant factor in sentencing you. Further, you left your house with a knife, and it appears the offence was planned to some extent. [G18, p93].
22. In this regard the respondent draws the Tribunal’s attention to the guidance in paragraph 11.1.1(1)(b) of the Direction that crimes committed against vulnerable members of the community are serious.
…
24. Taking into account the nature of the offence, the comments of the sentencing Judges, together with general Guidance and Principles set out in Direction No. 65, it is the respondent’s contention that the offence committed by the applicant weighs in favour of cancellation and does so to a significant degree.
At hearing, the Minister contended further that whether the vulnerability of a taxi driver, driving alone at night put the taxi driver within the class of persons deemed as “vulnerable members of the community” in paragraph 11.1.1(1)(b) of Direction No. 65 was clearly an issue before the Tribunal. The Minister contended that whilst this was a somewhat semantic exercise, the Minister says it does. The Minister submitted that if the Tribunal came to a different view, then the vulnerability of the taxi driver was still an aggravating factor to the type of offence committed. The Minister reiterated at hearing that the seriousness of the Applicant’s offence was reflected by the fact that the maximum penalty that can be imposed is life imprisonment and by the fact that the sentencing judge specifically mentioned the vulnerability of the taxi driver as a factor aggravating the seriousness of the offence.
The Tribunal notes that in considering the nature and seriousness of NKWF’s offence of ‘armed robbery,’ it is an offence that is viewed seriously, and as a significant act of violence, which is reflected in Direction No. 65 and by the sentencing remarks of His Honour Justice Corboy. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, especially where an offender has no significant criminal record. NKWF’s term of imprisonment of 2 years and 3 months (irrespective of the fact that it was fully suspended for a period of 15 months) reflects the seriousness of NKWF’s conduct against the community.
The Tribunal notes the Minister’s emphasis on His Honour Justice Corboy’s remarks that taxi drivers are vulnerable members of the community and the vulnerability of the taxi driver is an aggravating factor going to the seriousness of the offence. The Minister contended that further, taxi drivers fall within the group of vulnerable members of the community set out in paragraph 11.1.1(1)(b) of Direction No. 65, which includes minors, the elderly and the disabled. The Tribunal takes the same view and notes further that in paragraph 11.1.1(b) of Direction No. 65 the persons are listed after the word “includes” and hence is not exhaustive.
The Tribunal finds that the Applicant’s oral evidence that he did not know it was serious to put a knife to another man’s throat does not fit with his statements that 1) he intended to do something that would see him return to detention and 2) he denied the offence to police as he didn’t know exactly what armed robbery was and as he wanted to ensure his charge “wasn’t so serious.”
The Tribunal has difficulty in accepting the Applicant’s evidence that he committed the offence in order to be returned to detention when his initial reaction after committing the offence was to tell his case manager, rather than the police, and then to fail to produce the weapon and deny the offence to police when they attended the next day. The Tribunal has difficulty in understanding why it mattered to the Applicant exactly what offence he was charged with (following from his explanation that he denied the offence due to not understanding exactly what ‘armed robbery’ was) if the purpose of committing the offence was to be returned to detention. The Tribunal also has difficulty in accepting that the Applicant’s failure to understand the nature of the charge was due to his being in a state of shock at the time, when at that same time his mental state enabled him to devise a story about having had an argument with a taxi driver (which he knew wasn’t true) and deny having committed the offence charged.
Applying the principles in paragraph 11.1.1 of Direction No. 65, the Tribunal finds that, viewed objectively, NKWF’s crime is indeed serious and of considerable concern. In the circumstances of this matter, the violent crime that NKWF committed against the taxi driver, a vulnerable member of the community, weighs heavily in favour of refusing NKWF’s visa. NKWF’s conduct during the events surrounding the crime reflects a degree of recklessness that cannot be excused.
(b) The risk to the Australian community should further offences be committed
Paragraph 11.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether NKWF represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Paragraph 11.1.2 of Direction No. 65 provides:
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(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.
In oral evidence before the Tribunal, NKWF said that while he has seen a psychologist and a psychiatrist in prison and in detention, as well as mental health nurses at various times, he had not undertaken any rehabilitation courses.
NKWF said that he was on antidepressants when he lived in the open community, but he stopped taking them two days’ prior to committing the offence. NKWF said that this was a factor in him committing the offence. NKWF said he went back on his medication when in prison, and when he was transferred to detention he took his medication for a further two months, but he has been ‘off’ his medication entirely for the last 10 months.
As to what may have led NKWF to cease his medication, Mr Gerrard directed NKWF to the following passage from his clinical record dated 6 April 2016, authorised by a mental health nurse (G20 at 206):
Discussed the faulty thought processes that lead [NKWF] to cease his medication, as he claims it was the same thought process that occurred which led to his offence. He strongly claimed that he has now learned from this incorrect way of conceiving of his medication and realises that he needs it to function appropriately at this point.
NKWF gave evidence that the above note recorded by the mental health nurse was “completely false” and that they were “not the words he used or meant to use.” NKWF said that he no longer needed medication for his depression notwithstanding his evidence that ceasing his medication of his own volition was a factor that led him to commit the offence. NKWF said that last year he had asked his doctor about it and the doctor had said that if NKWF was ‘ok’ to go without the medication then he could stop.
In response to the Minister’s question that if NKWF was in the community again and experienced the same frustrations again, “where is the security for Australians that he won’t reoffend?” NKWF said he had “learned his lessons the hard way” and that he would not act in the same way if those circumstances arose again. NKWF said that it had never crossed his mind that one day he would do something that would make him go to prison. NKWF said that it is unlikely he would re-offend as it is not what he came [to Australia] for, if so “he would have done it in Afghanistan.”
NKWF said that if he had a protection visa that allowed him to work or study, he would be busy doing that, and that would help him not to have “those sorts of thoughts and mental processes.” NKWF said he would also be happy to go to the doctor and “continue to see psychologists.” NKWF said the underlying factors and frustrations were still there, but “not as much as before.” NKWF said that while he is still separated from his family, it is his family that gives him hope.
In relation to this issue, the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 26 April 2017:
(a)       Nature of the harm if further criminal conduct
26. The nature of the harm to the community, involving violent robbery of vulnerable people, should the applicant again commit similar offences means that the community should not be expected to tolerate a risk of such offences being repeated.
(b)       Likelihood of further criminal conduct
27. Whilst the applicant has only a single conviction there are reasons for the Tribunal to be concerned about the risk of recidivism.
28.     Significantly, there is no statement of remorse from the applicant. Neither is there any objective evidence of rehabilitation of the kind referred in paragraph 11.1.2(3) of the Direction. Given the applicant’s offending involved a significant act of violence, the absence of any objective reassurance that the community is not still at risk is, in the respondent’s contention, a matter which should be given considerable weight.
29.     Similarly, the respondent notes that the applicant had only been in the community on a bridging visa for a brief period [of approximately 2.5 years] before committing such a serious offence.
…
31. In light of the above, the respondent contends that there is no evidence before the Tribunal to indicate that the applicant is remorseful of his offending, has addressed underlying factors which may have contributed to his offending behaviour or any other evidence which would indicate that the applicant presents an acceptable risk to the community.
32. Given the nature of the offending and the nature of the harm to individuals should the applicant engage in further criminal conduct of this nature, the respondent contends that the Australian community should not be expected to tolerate a risk of recidivism: see paragraphs 6.3(3) and 11.1.1(1)(a) and (b) of Direction no. 65.
33. The respondent contends that this primary consideration should weigh significantly and determinately in favour of non-revocation.
At hearing, in relation to this issue, the Minister expressed its concerns that outside the guilty plea, there is no plea of remorse recorded in the sentencing judge’s remarks, there is no evidence that the Applicant has participated in objective rehabilitation courses, there are no reports from psychologists or psychiatrists (at all, let alone any that address the Applicant’s appreciation of his offending behaviour) or any evidence that the Applicant has made any other attempt to address (for example by putting in place a treatment plan for his depression) the underlying cause of his behaviour. The Minister also noted NKWF’s limited time in the community prior to committing the offence and that the offence was pre-meditated.
In considering the risk of harm to the Australian community, the Tribunal notes NKWF’s evidence that he, of his own volition, ceased his medication for depression 10 months ago and has not taken any medication since. The Tribunal notes this is notwithstanding the recent record by the mental health nurse that NKWF needs the medication to function properly and that it was his faulty thought processes which led to his offence. The Tribunal also notes the indication in Torture and Trauma Assessment report dated 10 May 2017 (R4) that NKWF’s assessment score with the “Hopkins Symptom Checklist” was 2.2 for anxiety and 2.8 for depression, with scores equal to or greater than 1.75 considered to be symptomatic. The Tribunal considers that even if it was the case that at the time NKWF ceased his medication, some 10 months ago, on his doctor’s advice that it was ‘ok’ to do so if NKWF thought he could manage without it, it is certainly the case more recently that he is still suffering from depression and has taken no steps obtain treatment.
The Tribunal notes further that NKWF’s oral evidence it had never crossed his mind that one day he would do something that would make him go to prison does not sit with the sentencing Judge’s factual finding that “the offence was planned to some extent” (G18 at 93). The Tribunal also notes from the sentencing Judge’s remarks that the psychologist report prepared for NKWF’s sentencing states that the Applicant “was likely to act impulsively.”
In light of the above, the Tribunal considers it has no reassurance that NKWF has taken any steps to address his frustrations (and how those frustrations manifest themselves), or any of the underlying factors which may have contributed to his offending behaviour, including the faulty thought processes that followed the cessation of his medication of his own volition. On the contrary, the Tribunal finds that all of the factors and frustrations at the time NKWF committed the offence still remain. The Tribunal also considers there is nothing in the evidence and materials before it to objectively demonstrate that if NKWF became similarly frustrated that he would not engage in serious criminal offending to address his difficulties in future.

All of these matters cause the Tribunal a significant level of disquiet. Although NKWF has apologised for his conduct, the Tribunal has concerns about his complete failure, even at hearing, to recognise the seriousness of what he did to the taxi driver and about his denial to police about having committed the offence in the first instance.
Further, there is no evidence that NKWF has achieved sufficient rehabilitation. As correctly outlined by the Minister, there is no objective evidence from an independent and authoritative source to indicate that NKWF has undergone any rehabilitation for the serious offence for which he was convicted or that the offending will not continue.
Based on the evidence before it, the Tribunal considers that there is a serious risk that NKWF will reoffend if returned to the community in Australia. Applying the guidance in paragraphs 11.1.2(1) and 11.1.2(2) of Direction No. 65, and given the nature of NKWF’s offence, his role in the commission of that offence and his failure to acknowledge his awareness of its serious nature, the Tribunal finds that the risk of NKWF reoffending is unacceptable in the circumstances of the case. Overall, NKWF’s behaviour presents a risk of reoffending that would be too much for the Australian community to tolerate. This weighs heavily in favour of refusing NKWF a visa.
(ii) Best interest of minor children
The second primary consideration listed in paragraph 11(1)(b) of Direction No. 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by the decision to refuse a visa.
No claims were made by NKWF in respect to any children and there is no evidence before the Tribunal that any children will be adversely affected by any decision to refuse the visa.
The Tribunal finds that this is not an issue in relation to NKWF.
(iii) Expectations of the Australian Community
In relation to paragraph 11(1)(c) of Direction No. 65 (the “expectations of the Australian community”), paragraph 11.3(1) of Direction No. 65 provides:
11.3 Expectations of the Australian Community
(1)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.
In analysing this third primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No. 65 and, in particular, the principles that:
(i)The Australian community expects the Australian Government to refuse to grant visas to non-citizens who commit serious crimes; and
(ii)Non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
In relation to this issue, the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 26 April 2017:
38. Having regard to those principles the respondent submits that whilst the Australian community might have a greater tolerance for a person who has lived in Australia for a lengthy period since arriving as a child, in the applicant’s case the Australian community would expect that a visa would not be granted to a person who had only been in Australia for a brief period before committing a violent crime against a vulnerable person. In circumstances such as these, the Australian community would expect that the applicant’s application for a visa be refused.
Violent crimes against vulnerable members of the community are particularly abhorrent. In the circumstances of the case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime of a violent nature, who has been in Australia for only 2.5 years before committing the offence, who has shown no true recognition of the wrong committed or provided any satisfactory evidence that it will not happen again, should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 12(1) of Direction No. 65 states:
12 Other considerations - visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations 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.
The Minister’s decision, although not a decision to “cancel” a visa but, rather, a decision to refuse to grant a visa is, in practical terms, akin to a decision to cancel a visa held by NKWF. Consequently, the Tribunal considers it appropriate in NKWF’s case to taken into account any other relevant considerations.
It is agreed, and the evidence shows, that in relation to NKWF, the only “other consideration” that is relevant is that outlined in paragraph 12(1)(a) (that is, “international non-refoulement obligations”).
International non-refoulement obligations
Paragraph 12.1 of Direction No. 65 provides:
(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 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 s501 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.
Pursuant to 12.1(1) of Direction No. 65, the Tribunal is required to take into account Australia’s international non-refoulement obligations, and should have regard to the tests enunciated in the Migration Act which reflect Australia’s interpretation of those obligations: LCNB and Minister for Immigration and Border Protection [2015] AATA 463 at [104 to [105] per DP Frost.
In the present case, and as correctly outlined by the Minister, it is accepted that NKWF has been assessed to be a person to whom Australia has protection obligations with reference to Afghanistan (G28 at 275) and that a consequence of this is that he could not be returned to Afghanistan without breaching Australia’s non-refoulement obligations (G5 at 17).
The existence of a non-refoulement obligation does not preclude the refusal of a person’s visa application. This is because the Minister will not, as a consequence of refusing their visa return a non-citizen to a country in circumstances where a non-refoulement obligation is owed. This is not withstanding the provisions of section 197C of the Migration Act which provides that, for the purposes of section 198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and that an officer’s duty to remove as soon as reasonably practicable arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen. Therefore, refusing NKWF’s visa is not inconsistent with Australia’s international obligations, even if he is owed protection.
As outlined by the Minister, section 197C of the Migration Act is relevant to the exercise of the removal powers in section 198 of the Migration Act but does not require removal to take place irrespective of Australia’s non-refoulement obligations. It provides, in effect, that if and when the time comes for a removal decision to be made in respect of a non-citizen, it is irrelevant as a matter of domestic law whether non-refoulement obligations are owed. This means that the removal cannot be challenged under domestic law on the basis that the removal would be inconsistent with Australia’s international non-refoulement obligations.
As the Explanatory Memorandum for the Bill that inserted section 197C of the Migration Act makes clear (i.e., the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014), the Minister intends to continue to honour Australia’s non-refoulement obligations.
Until the recent decision of the Federal Court in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (date of judgment 3 May 2017) (the DMH16 decision), it has also been accepted that one of the consequences of not returning a non-citizen to a country in circumstances where a non-refoulement obligation is owed is that the non-citizen could face an indefinite period of detention (because of the operation of section 189 and section 196 of the Migration Act).
The effect of the DMH16 decision is that the options for the Minister, in making a decision on whether to refuse or cancel an application for a visa, requires them to have regard to the consequences of doing so. In the DMH16 decision, His Honour Judge North, in considering those consequences, did not identify indefinite detention as one of those consequences. Rather, His Honour identified the following “alternative management options” that would be open to the Minister:
(a)Returning the non-citizen’s to their country of origin. Where return to the country of origin is not possible;
(b)Consider intervening under section 195A of the Migration Act to grant a temporary visa. In this instance, the applicant would be detained for a definite period, namely, until the Minister considered whether to exercise the power under section 195A; or
(c)Make a residency determination under section 197AB of the Migration Act.
The DMH16 decision gives an explanation of these non-conventional personal interventional powers of the Minister:
9. Section 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person had applied for the visa, if the Minister this is in the public interest to do so. The power must be exercised by the Minister personally (s195A(5)). The Minister is not obliged to consider whether to exercise the power (s195A(4)).
10. Section 197AB allows the Minister, if the Minister this it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration as defined by the Act. Again, the Minister is under no duty to consider making such a determination (s197AE). The Minister is, however, obliged to exercise the power personally (s197AF).
At hearing, in relation to this issue, the Minister submitted that the Explanatory Memorandum for the Bill that inserted section 197C of the Migration Act is consistent with the approach identified in the DMH16 decision.
The Minister also submitted (and the Tribunal finds, in light of the DMH16 decision) that it is the three options outlined in the DMH16 decision that must be weighed against the seriousness of NKWF’s conduct in considering the international non-refoulement obligations owed to him in the context of the legal consequences of making a decision on whether to refuse NKWF’s visa.
The Tribunal accepts that there are non-refoulement obligations owed to NKWF. The Tribunal has carefully weighed those obligations and the prospects set out in the three management options identified in the DMH16 decision against the seriousness of the NKWF’s offending.
The Tribunal considers that NKWF’s offence of armed robbery involved a serious offence against a particularly vulnerable member of the community, which was punishable by a maximum term of life imprisonment. NKWF was sentenced to 2 years and 3 months imprisonment, which reflects the sentencing Judge’s remarks that armed robbery is a most serious offence, with a term of imprisonment ordinarily being the only appropriate sentence.
The Tribunal has expressed its concerns regarding NKWF’s risk of reoffending, which arise from having no reassurance that NKWF has taken any steps to address his frustrations or any of the underlying factors which may have contributed to his offending behaviour. The Tribunal has also noted the difficulties it has accepting NKWF’s evidence regarding his failure to understand the nature and seriousness of his offence and his inability, even at hearing, to recognise the seriousness of his offending conduct.
After weighing all of these factors, the Tribunal considers that the seriousness of NKWF’s offending outweigh Australia’s non-refoulement obligations owed to him, including the prospects outlined in the DMH16 decision.
CONCLUSION
Having been convicted of an offence carrying with it a sentence of a term of imprisonment of 12 months or more, NKWF has a substantial criminal record and does not pass the “character test” in section 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise its discretion to refuse NKWF a visa, the Tribunal has attached significant weight to the fact that NKWF committed an offence which is regarded as most serious and that the crime was committed against a vulnerable member of the community (both of these being factors detailed in paragraph 11.1.1 of Direction No. 65.
In the evidence before it, the Tribunal finds that NKWF should, as per paragraph 6.3 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that NKWF may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should NKWF engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account information and evidence in relation to the risk of NKWF re-offending. NKWF has not taken any steps towards treatment for his depression and anxiety and has not made any progress towards rehabilitation for his offending conduct.
The Tribunal considers that, due to NKWF’s evidence (particularly at hearing and which the Tribunal has difficulty accepting) regarding his conduct towards police around the time of his arrest and his stated reasons for committing the offence, NKWF does have some, albeit a somewhat detached, appreciation of the seriousness of his misconduct. However, despite having this appreciation, NKWF continues to refuse to acknowledge or admit to this. In the circumstances, the Tribunal believes that there is an ongoing risk of reoffending, and as such, an unacceptable risk to the Australian community.
The Tribunal also considers that the nature and seriousness of the crime committed, outweighs Australia’s non-refoulement obligations owed to him and also leads to the view that the Australian community would expect that NKWF’s visa would be refused.
In relation to any countervailing considerations that may weigh in favour of NKWF, the Tribunal notes that no evidence has been presented in this regard.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65, the correct and preferable decision is to refuse to grant NKWF the visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Ms LM Gallagher, Member, Mr S Rafferty, Member

.........[Sgd]...............................................................
Administrative Assistant
Dated: 7 June 2017

Date of hearing: 29 May 2017

Applicant: In person (unrepresented)

Representative for the
Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	29 May 2017
Applicant:	In person (unrepresented)
Representative for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor