NRND and Minister for Immigration and Border Protection (Migration)

NRND and Minister for Immigration and Border Protection (Migration) [2018] AATA 3601 (21 September 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/7742
GENERAL DIVISION  )
Re: NRND
Applicant

And: Minister for Immigration and Border Protection
Respondent
DIRECTION
TRIBUNAL: Deputy President J W Constance
DATE OF CORRIGENDUM: 26 September 2018
PLACE: Sydney
IT IS DIRECTED that, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the text of the decision in this application is to be altered such that:

the wording of the decision is changed to:
The decision under review, being the decision made 25 October 2017
to exercise the discretion to refuse the visa applicant’s application for a Partner visa, is set aside;
The matter is remitted to the Minister for Immigration and Border Protection for reconsideration with a direction that the visa applicant should not be refused a Partner (Provisional)(Class UF) visa under s 501(1) of the Migration Act 1958 (Cth)

the wording in paragraph [5] of the reasons for the decision is changed to:
For the reasons which follow, the matter will be remitted to the
Minister for reconsideration with a direction that Mr G should not be refused a Partner (Provisional)(Class UF) visa under s 501(1) of the Migration Act 1958 (Cth)

the wording in paragraph [103] of the reasons for the decision is changed to:
It will be decided that the matter will be remitted to the Minister for Immigration and Border Protection for reconsideration with a direction that Mr G should not be refused a Partner (Provisional)(Class UF) visa under s 501(1) of the Migration Act 1958 (Cth)

...................[sgd]................................................
J W Constance
Deputy President
Division:GENERAL DIVISION
File Number(s): 2017/7742
Re:NRND
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:21 September 2018
Place:Sydney

The decision under review, being the decision made 25 October 2017 to exercise the discretion to refuse the visa applicant’s application for a Partner visa, is set aside.
In substitution, it is decided that the matter will be remitted to the Minister for Immigration and Border Protection for reconsideration with a direction that the visa applicant be granted a Partner (Provisional)(Class UF) visa.
..................[sgd]......................................................
J W Constance
Deputy President
CATCHWORDS
MIGRATION - discretion to refuse the application for a visa - Partner visa - whether the visa applicant is of good character - substantial criminal record - people smuggling - transportation of refugees - humanitarian crisis - Ministerial Direction No. 65 - protection of the Australian community - seriousness and nature of conduct - expectations of the Australian community - risk to community should conduct be repeated - decision set aside and remitted to the Minister
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
REASONS FOR DECISION
21 September 2018
1. INTRODUCTION

The Applicant has applied to the Tribunal to review a decision of a delegate of the Minister to refuse to grant a partner visa to her husband, Mr G. She is entitled to make this application as her interests are affected by the decision.[1]
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 27.
The Applicant and Mr G married in Serbia in March 2016 and from then until October 2017 they lived together in Belgrade.
Mr G has always lived in Serbia. He has never visited Australia. The Applicant is an Australian citizen. Since October 2017 she has been living in Australia with her family.
On 21 April 2016, Mr G applied for a Partner visa so that he and the Applicant could live together in Australia. On 25 October 2017, a delegate of the Minister refused the application on the grounds that Mr G did not pass the character test set out in the Migration Act 1958 (Cth) and that the discretion to refuse the visa should be exercised.[2]
[2] Exhibit R1 at 17.
For the reasons which follow, the decision under review will be set aside and the matter will be remitted to the Minister for reconsideration with a direction that Mr G be granted a Partner (Provisional)(Class UF) visa.
2. BACKGROUND
Unless stated otherwise, findings of fact in these reasons are based on the evidence of Mr G. I am satisfied of the facts found on the balance of probabilities.
Mr G is 39 years old.
Conviction by a Court in Hungary in 2015
On 11 September 2015, Mr G was convicted in a Hungarian Court of the offence of “smuggling of people, helping more people at the border crossing, one-time”[3] and sentenced to imprisonment for 18 months. The sentence was immediately suspended on the basis that he could be required to serve the sentence within two years of the conviction. He was held in custody from the time he committed the offence (13 August 2015) until he pleaded guilty and was sentenced on 11 September 2015.
[3] Exhibit R1 at 79.
In a statement filed in these proceedings and verified at the hearing, Mr G described the circumstances of his conviction and imprisonment:
In August of 2015, a friend of mine asked me if i would help him to give a ride to these people to Austria and in return he would pay me. He told me that we wont [sic] do any illegal offence as this would be classed as a taxi ride, because we will not take them over the border, as they will pass the border alone. As the agreement was that i should only wait for them in Hungary, and drive them to Austria. On the 13^th of August 2015, we went on the road. When they crossed the Hungarian border, i was waiting for them and soon as they entered the car, the police had stopped us. They then arrested me, and I had been in prison until the 11^th of September 2015. When i had the court trial at Baja city, they gave me paroled sentence of two years, and one year and six months of prison if i repeat any offence in Hungary. They banned me to enter Hungary and Schengen zone country’s [sic] for two years (until 11^th September 2017). They also give me a fine of 51,950 forints (167 euros) to pay for court costs.
That was my first time that i ever had issues with the law. I’ve always tried to live honestly and to avoid trouble. In custody in which i was almost for one month, I thought a lot of everything and I decided to never let something similar happen. I just want to have a peaceful family life. I am saying this in order to convince you that I have no intention to never do something that’s illegal, and I have learnt a lot from this bad experience that I had. I honestly feel a shamed [sic] that i have allowed this to happen to me.[4]
[4] Exhibit A2.
Mr G’s evidence as to the circumstances of the offence
The Solicitor for the Minister questioned Mr G at length as to how he came to commit the offence.
When Mr G was asked by his friend to drive a group of refugees from Belgrade to Austria, he was offered the equivalent of AUD 1000.00 to do so. This was a significant amount of money for Mr G, as it was about the same as he could earn over 2-3 months if he got casual work. He did not believe he was exploiting the refugees as they had offered the amount to his friend who conveyed this to him. He did not ask for the sum offered. He was not paid in advance and he never received the sum offered.
Mr G felt that he was doing a good deed for the family, which included children, as Belgrade “was full of people like them, wanting to go to Germany or Austria.” He was aware that the family was escaping from the war in Syria. He believed that they had been robbed on occasions and feared for their safety.
Mr G was unaware that he was acting illegally in assisting the refugees in the manner in which he did. The family alighted from his vehicle before the Hungarian border and Mr G then drove through the check point and waited for them about one kilometre beyond the Hungarian side of the border. The refugees crossed the border on foot. When they got into Mr G’s vehicle again, he was arrested by the Hungarian Police.
Mr G knew that it was illegal for refugees to cross from Serbia into Hungary, but believed that if he did not assist them to actually cross the border he was not committing an offence in either country. He did not know whether the Hungarian authorities would permit them to cross the border – if they did, he believed that he could then lawfully transport the family through Hungary to the Austrian border. He would not have undertaken the journey if he had been aware that he was acting illegally. This was the only occasion in which he had engaged in such conduct.
Visa application
On April 2016, Mr G lodged an offshore application for a Partner (Provisional)(Class UF) visa. He was sponsored by the Applicant.
3. LEGISLATION
The grant of a visa to entitle a non-citizen to enter Australia is governed by the Migration Act 1958 (Cth). The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[5]
[5] Migration Act 1958 (Cth) s 4(1).
Section 501 of the Act provides, in part:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
Section 499 provides, in part:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
Direction No. 65
In exercise of the power given by s 499, the Minister issued Direction No.65 on 22 December 2014.[6] It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to … refuse a non-citizen’s visa under section 501CA…”.[7]
[6] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014.
[7] Ibid cl 5.
Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa:
(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… under section 501 should be made in a timely manner once a 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…a non-citizen’s visa under section 501…. 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…of this Direction.
The Principles are set out in Paragraph 6.3:
(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.
The manner in which the discretion is to be exercised is set out in Paragraph 7. It provides that, informed by the principles in Paragraph 6.3, the decision-maker must take into account the primary and other considerations relevant to the particular case. These considerations are set out in Part B of the Direction, to which I will refer in detail later in these reasons.
Paragraph 8 provides that a visa applicant “should have no expectation that a visa application will be approved.” The paragraph further provides that “[p]rimary considerations should generally be given greater weight than the other considerations” and that “[o]ne or more primary considerations may outweigh other primary considerations”.[8]
[8] Subparagraphs (4) and (5) respectively.
4. ISSUE FOR CONSIDERATION
As Mr G was sentenced to eighteen months in prison, it is not in dispute that he has a “substantial criminal record” as defined by subsection 501(7) of the Act and, therefore, does not pass the character test in accordance with subsection 501(6). The discretion to refuse the application for a visa, granted by subsection 501(1), is enlivened.
The issue I have to decide is whether the discretion to refuse to grant the visa sought by Mr G should be exercised.
5. CONSIDERATION
Part B of Direction No. 65 sets out the primary and other considerations I must take into account in deciding whether or not to exercise the discretion to which I have referred.
5.1 Primary considerations
The Primary considerations are set out in Paragraph 11 of Part B. They are:
(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.
5.1.1 Primary consideration (a): Protection of the Australian community from criminal or other serious conduct.
Paragraph 11.1 of the Direction provides that “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.” Consideration is also to be given to the nature and seriousness of the visa applicant’s conduct to date and the risk to the community should the visa applicant commit further offences or engage in other serious conduct.
5.1.1.1 The nature and seriousness of Mr G’s conduct to date
Subparagraph 11.1.1 sets out further principles to which regard is to be had in considering the nature and seriousness of the non-citizen’s criminal offending. These are set out in full in the schedule (Schedule 1) to these reasons.
The crime committed by Mr G was neither violent nor sexual in nature. It was not committed against the refugees. Rather, it was a crime against the State of Hungary in the exercise of its rights as a sovereign State. Nevertheless, there can be no doubt that the offence of people smuggling is a serious offence with serious consequences for Australia if this country is the subject of the illegal activity. In this regard, I have taken into account material provided on behalf of the Minister.[9]
[9] Exhibit R2: Khalid Koser and Marie McAuliffe, “Establishing an Evidence-Base for Future Policy Development on Irregular Migration to Australia”, Irregular Migration Research Program Occasional Paper Series, June 2013.
Exhibit R3 Australian Federal Police web page 31/08/2018, Why People Smuggling threatens all Australians.
Several matters cause me to conclude that Mr G’s offence was to the lower end of the scale of similar offences.
First, the circumstances of his offending. He did not attempt to evade the law enforcement authorities in either country by concealing the refugees or attempting to convey them across the border. On the contrary, he caused them to approach the crossing point on foot to ascertain what, if any, action would be taken against them. They were permitted to enter Hungary under circumstances unknown. They were then required to proceed on foot about one kilometre past the check point before again entering the vehicle being driven by Mr G.
Secondly, Mr G was not imprisoned after he was convicted. On the limited evidence available as to the Court proceedings in Hungary, I am satisfied that the Court considered that the 30 days during which Mr G was held in custody prior to his court appearance was an appropriate period of detention provided he did not commit any further offences. This was significantly less than the term of actual imprisonment which could have been imposed.
Thirdly, this is Mr G’s only conviction. He was not convicted in Serbia of any offence related to these circumstances. I accept his evidence that he has no other convictions of any kind, and, apart from his activity on this occasion, he has always strived to be a law-abiding citizen. A certificate issued by the Ministry of Internal Affairs of the Republic of Serbia confirms that he had no criminal record in Serbia as at 11 April 2018.[10]
[10] Exhibit A11.
Fourthly, Mr G disclosed his conviction in his application for a visa.
Discussion
The circumstances of the convictions
In Minister for Immigration and Ethnic Affairs v Daniele,[11] the Full Court said, in part:
…the conviction itself is evidence and usually strong evidence of the commission of the crime for which the deportee was convicted.
But that is not to say that, in a review of an order for deportation, it will never be necessary or useful to give detailed consideration to the circumstances of the trial or to attempt to identify precisely the conduct which was accepted by the jury in giving its verdict. In a particular case, the circumstances of the crime may or may not be admitted. The transcript of the evidence at the trial may or may not be put in evidence. The learned trial Judge’s summing up or his remarks on sentence may or may not be in evidence. …But there may be before the Tribunal other evidence bearing upon the circumstances of the crime. It may be oral evidence. Or there may be other documentary evidence such as a copy of the depositions at committal proceedings. Some of the evidence before the Tribunal may tend to support the conviction. Other parts of the evidence may tend to contradict it.
The fundamental task of the Tribunal is to give to the applicant before it and to the respondent a hearing and form its own judgment on all matters which are relevant to the exercise of the power of deportation. …The total pattern of the deportee’s behaviour, including his criminal behaviour, his personality and characteristics, the risk of recidivism, the risk of harm to the community should he remain in Australia, the prospects of his rehabilitation and the detriment to him should he be deported are all matters concerning which the Tribunal will usually have to make up its own mind and concerning which the view of the jury as to whether or not a crime occurred may, in a particular case, be of only limited value.[12]
[11] [1981] FCA 212.
[12] Ibid at 2.

Whilst there is no doubt that Mr G was convicted of the offence of people smuggling in Hungary, I am not required to ignore the circumstances in which the conviction took place.
5.1.1.2 The risk to the Australian community should Mr G commit further offences or engage in other serious conduct
I note that Direction No. 65 refers to the principles that the community’s tolerance for the risk of future harm becomes lower as the seriousness of potential harm increases and that there should be no expectation that a person who commits a criminal offence should be allowed to come to Australia.
The Minister referred me to the website of the Australian Federal Police which contains the following:
People smuggling is a threat to all Australians because:
·     there are serious security and criminal concerns when people arriving in Australia are not properly identified
·     there are major quarantine and health risks involved in people bypassing lawful immigration channels
·     processing illegal immigrants creates significant logistical problems and costs
·     it infringes the sovereignty of Australia’s borders. [13]
[13] Exhibit R3.
Having listened to Mr G give evidence I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. He gave his evidence by telephone through an interpreter and I acknowledge that this does make the assessment of credit more difficult.
I accept the evidence of Mr G that he is remorseful for having offended and that he would not have done so had he realised the likely consequences of his conduct. I accept also his evidence that he did not intend to commit a criminal act. However, he was aware that it was likely that the refugees would be committing an offence by crossing the border and that, despite this, he was prepared to wait to transport them across Hungary to the Austrian border.
There is no evidence from an independent and authoritative source as to the likelihood of Mr G re-offending.
Although Mr G has not undertaken any formal rehabilitation, I am satisfied that he is genuinely remorseful and is determined that he will not engage in any further criminal or other serious conduct. I find support for this conclusion in the fact that he has no other convictions, either before or after the subject offence.
In considering the evidence, I have taken into account that the visa sought by Mr G would entitle him to live in Australia until his application for a permanent partner visa is processed.
I am satisfied that the risk that Mr G would re-offend or engage in similar serious conduct should he come to live in Australia is very low. I note that the Minister’s delegate determined that the risk was “low”.[14]
[14] Exhibit R1 at 15.
In reaching this conclusion I have taken into account that Mr G has no other criminal convictions and that he has learned from the mistakes he made in taking the action that led to the one conviction that he has. I accept that he has remorseful and is determined not to re-offend.
I have also taken into account the situation in Serbia at the time of the offence. I accept Mr G’s evidence that at the time there were a large number of people in Serbia seeking to travel to other European countries to escape the effects of war.
The Minister’s Solicitor likened the offence committed by Mr G to that of a people smuggler operating in a neighbouring country to Australia and transporting refugees to a boat to enable them to travel to Australia. While I agree that this scenario bears some similarity it does not reflect the likely circumstances in which Mr G would find himself if he were living in Australia.
In Australia, Mr G will not be living in a community faced with the humanitarian crisis which existed in Serbia and other European countries in 2015. To put himself in the position suggested on behalf of the Minister he would have to travel to a country outside Australia and establish contacts with refugees there. This is highly unlikely.
Should Mr G be able to reside in Australia I am satisfied that he will have the support of the Applicant and her family. I will refer to the evidence of this later in these reasons.
Further, it is likely that Mr G would be in a much better financial situation in Australia and enjoying a much higher standard of living than he was in Serbia in 2015. This would lessen the risk that he would engage in any form of criminal or other serious conduct for financial gain.
Mr Z gave evidence at the hearing and provided a statement dated 4 June 2017.[15] Mr Z is a sole owner of a painting business in Australia who knows Mr G after having worked with him on a number of projects in Serbia. On the basis of his evidence, I am satisfied that Mr G will have the opportunity to engage in full-time employment as an apprentice painter should he be granted a visa.
5.1.2 Primary consideration (b): Best interests of minor children in Australia affected by the decision
[15] Exhibit R1 at 122.
There are no minor children in Australia affected by the decision in relation to this application.
It was argued on behalf of the Applicant that I should take into account that the Applicant and Mr G plan to have children, as do the Applicant’s siblings. In my view the Direction does not refer to children who may be born at some future time.
5.1.3 Primary consideration (c): Expectations of the Australian Community
Clause 11.3 of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have regard to the Government’s views in this respect.
The contentions on behalf of the Minister
It is contended that “the Australian public would expect the Visa Applicant’s visa to be refused in circumstances where the Visa Applicant has been convicted for a serious crime involving people smuggling and has never been to Australia nor made any contribution to the Australian community.”[16]
In support of this contention I was referred to I was referred to 6.3(3) and (5) set out in the Preamble to the Direction which are outlined above at paragraph 21.
[16] Respondent’s Statement of Facts, Issues and Contentions dated 10 August 2018 at [35].
Copies of the results of several surveys of the attitudes of Australian citizens to refugees coming to Australia were provided on behalf of the Applicant.[17] The Solicitor for the Minister put that:
These statistics demonstrate that whilst Australians are sympathetic to refugees, this sympathy does not extend to those who smuggle them. Accordingly, the Australian community would expect an individual who has been convicted of people smuggle and enabling the irregular movement of persons across borders to be refused a visa.[18]
[17] Exhibits A7 – A10 inclusive.
[18] Respondent’s Statement of Facts, Issues and Contentions dated 10 August 2018 at [41].
Discussion
I agree that if members of the Australian community had no more information than that Mr G had been convicted of people smuggling, they would expect that he not be granted a visa which would allow him to reside in this country. However, the expectations of the community should be determined on the basis that the community is fully informed of all the facts of the particular matter.
Of particular importance in this application is that the community be aware of the facts set out in these reasons in relation to the following:
·the conduct of Mr G which constituted the offence;
·the circumstances in which Mr G committed the offence;
·the refugee crisis which existed in Serbia and neighbouring countries at the time of the offence;
·that the Hungarian Court did not sentence Mr G to actually serve a sentence of imprisonment in addition to the 30 days he had spent in custody prior to his plea of guilty and conviction;
·that the term of imprisonment which was imposed was immediately suspended;
·that Mr G is 39 years old and has no other convictions;
·the evidence of the Applicant and her family members set out later in these reasons;
·the evidence of the witnesses as to the good character of Mr G apart from his one conviction;[19]
·Mr G’s genuine remorse.
[19] Exhibits A1, A3, A4, A5, A6, A12, A13, A14, A15, A16 and A17.
It is certain that within the Australian community there will be widely differing views as to whether Mr G should be granted a visa which will permit him to reside in Australia. I have no doubt that some of those views will be that having committed an offence of people smuggling, Mr G should not be granted a visa regardless of any other circumstances which may exist.
In my view, the Australian community, fully informed of the facts of this matter, would expect that Mr G be granted the visa he seeks. While I accept that the community has little tolerance for those who benefit from the plight of refugees, I am satisfied that the Australian community would be prepared to give Mr G the opportunity to live in Australia. In my view, the Australian community would consider that Mr G has only one conviction and that, otherwise, he has good standing in his community. I also consider that the Australian community would be sympathetic to the situation in which the Applicant finds herself and to the effect it is having upon her and other family members.
5.2 Other considerations
Under the heading “Other considerations – visa applicants”, Paragraph 12 of the Direction provides:
(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;
(d)Impact on Australian business interests.
There is an obvious drafting error in the opening words of this paragraph. They refer to “deciding whether to cancel a visa”, rather than to deciding whether to refuse a visa. Nevertheless, it is clear that it was the intention of the Minister that this paragraph refers to an application for the grant of a visa. The paragraph is in Part B which specifically relates to visa applications. Further, subparagraphs (2) – (6) inclusive all refer to a visa application.
5.2.1 International non-refoulement obligations
International non-refoulement obligations are not relevant in this application.
5.2.2 Impact on family members
Paragraph 12.2(1) of the Direction provides:
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.
The evidence of the Applicant
The Applicant provided a statutory declaration made 4 July 2018[20] and gave evidence at the hearing.
[20] Exhibit A1.
The Applicant is 28 years old. She is an Australian citizen who was born in Australia.
Apart from a period of 17 months in 2016 – 2017, the Applicant has always lived in Australia. At present she is living with her parents and two sisters in a suburb of Sydney. Another sister and her family live close by.
The Applicant met Mr G while she was holidaying in Serbia in June 2015. They became engaged in November 2015 and married in March 2016. From March 2016 until October 2017, the Applicant and Mr G lived together in Serbia.
While they were living together, Mr G had intermittent casual employment. This was all that was available to him by reason of the limited employment opportunities in Serbia for a person without professional qualifications. Between July 2016 and October 2017 the Applicant was employed as a teacher in an International School in Serbia.
The Applicant and Mr G struggled financially while they were living in Belgrade. The Applicant found the living conditions very difficult compared with the standard of living to which she was accustomed in Australia.
By October 2017 the Applicant returned to Australia to live with her parents and sisters. She was distressed to be leaving her husband but, despite her best endeavours, she could not continue to live in Serbia. Since leaving Serbia she has remained in daily contact with her husband and she returned to Serbia to spend time with him in December 2017.
The Applicant graduated from the University of Sydney with a Bachelor of Health Science. Her major was in Sociology.
At present, the Applicant is employed by a not-for-profit organisation as a Work Support Officer supporting people with disabilities in the workplace. Her annual salary is $80,500, including superannuation. The Applicant wishes to continue her career within the social services area of government.
Each week the Applicant transfers between $100 and $200 to her husband. The amount varies depending on his need to meet living expenses.
The Applicant and Mr G wish to have children, but only when they are living together on a full-time basis. In her words, “I believe that bringing up a child when I am financially struggling in Serbia would be extremely unfair and unreasonable. This is not the right time to bring a child into the world, as a child deserves better living conditions.”[21]
[21] Exhibit A1 at [26].
It is important to the Applicant that any children she may have will have frequent contact with her extended family. If she and Mr G were to raise a family in Serbia, they would have limited family support. Mr G’s mother is elderly and ill. His sister lives in Germany.
I am satisfied that the Applicant was an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
Evidence of Mrs S, the Applicant’s mother
Mrs S provided a statutory declaration made 2 July 2018[22] and gave evidence at the hearing.
[22] Exhibit A3.
Mrs S lives in the family home with her husband and three of their four daughters. She and her husband are in employment.
Mrs S plans to reduce her work commitments when she has grandchildren so that she is able to assist in their care. She is looking forward to becoming a grandmother.
Mrs S would be upset if the Applicant returned to live in Serbia. It is her strong desire that her daughter and her husband live together and raise a family in Australia.
Mr S, the Applicant’s father, has a heart condition and would be unable to travel to Serbia to visit the Applicant and her family should she decide to live in that country.
Mr and Mrs S would be happy for the Applicant and Mr G to live with them until they were able to establish their own home in Australia.
I am satisfied that Mrs S was an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
Evidence of Ms S, the Applicant’s sister
Ms S provided a Statutory Declaration made 30 June 2018[23] and gave evidence at the hearing.
[23] Exhibit A4.
Ms S gave evidence that she wishes for the Applicant and her husband to be able to live together in Australia and that it would be distressing for the whole family (including her two younger sisters) if they are unable to do so. She and her husband are anxious to assist Mr G to settle in Australia should he be free to do so.
I am satisfied that Ms S was an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
Discussion
On the basis of the evidence of the Applicant, Mrs S and Ms S, I am satisfied that there would be a significant impact on the Applicant, and Mr G’s parents-in-law and sisters-in-law should Mr G not be able to live with the Applicant in Australia. I am satisfied that the bond between the Applicant, her parents and siblings is strong and that the possibility that the Applicant would not be able to live in Australia with her husband as part of the family, would be distressing to them. Should the Applicant change her mind and return to live in Serbia with her husband, she would be unable to continue her chosen career.
5.2.3 Impact on victims
There is no evidence to allow me to make any finding in relation to any possible impact of a decision to refuse or to grant a visa to Mr G on the victims of Mr G’s offence.
5.2.4 Impact on Australian business interests
There is no evidence to suggest that a refusal to grant a visa would have any impact on Australian business interests.
5.3 Discussion
As I have already set out, I am to be informed by the Principles in Paragraph 6.3 in exercising the discretion to grant or refuse Mr G’s application for a Partner visa.
These Principles include that being able to come to Australia is a privilege conferred 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.”
The Minister contends that the offence of people smuggling is serious and creates a significant risk to the Australian community and that, in these circumstances, the Australian community would expect that Mr G would not be granted a visa which would entitle him to live in Australia. Further, it is argued that any hardship the Applicant may face is not enough to overcome these considerations.
I do not accept the Minister’s argument.
There can be no doubt that the offence of people smuggling is serious. However, the nature of Mr G’s offence and the circumstances in which it was committed are also relevant. I have referred to these earlier in these reasons.
I have found that the Australian community, fully informed of the facts of this matter, would expect that Mr G be granted the visa he seeks.
I have given considerable weight to my finding that the Mr G has no other convictions and that the risk of his re-offending is low.
In these circumstances, I am satisfied that the impact of a refusal to grant a visa to Mr G on the Applicant and his other family members in Australia outweighs any slight risk to the Australian community.
In particular, I give substantial weight to the effect upon the Applicant of a decision to refuse Mr G’s application. She impressed me as a person torn between her genuine wish to share her life with her husband and her desire to continue to enjoy the benefits of life with her family around her in Australia. In addition, I accept that she wishes to be able to pursue her career in Australia.
For these reasons, the discretion to refuse Mr G’s application for a Partner visa should not be exercised.
7. CONCLUSION
The decision under review, being the decision made 25 October 2017 to exercise the discretion to refuse Mr G’s application for a Partner visa, will be set aside.
In substitution, it will be decided that the matter will be remitted to the Minister for Immigration and Border Protection for reconsideration with a direction that Mr G be granted a Partner (Provisional)(Class UF) visa.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.......................[sgd].................................................
Associate
Dated: 21 September 2018

Date(s) of hearing: 5 September 2018

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: South West Migration and Legal Services

Solicitors for the Respondent: Clayton Utz
SCHEDULE 1
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
11.1.1 The nature and seriousness of the conduct
(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;
c.Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;
d.The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501 (6)(c), is considered to be serious;
e.The sentence imposed by the courts for a crime or crimes;
f.The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g.The cumulative effect of repeated offending;
h.Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i.Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

[2018] AATA 3601

21 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Date(s) of hearing:	5 September 2018
Counsel for the Applicant:	Mr B Zipser
Solicitors for the Applicant:	South West Migration and Legal Services
Solicitors for the Respondent:	Clayton Utz