NYYK and Minister for Home Affairs (Migration) - [2019] AATA 3204

NYYK and Minister for Home Affairs (Migration) [2019] AATA 3204 (3 September 2019)
Division:GENERAL DIVISION
File Number: 2019/3437
Re:NYYK
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:Member Tigiilagi Eteuati
Date:3 September 2019
Place:Sydney

The decision under review is affirmed.
...........................[SGD].............................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(a) - whether the discretion to refuse to grant the Bridging visa should be exercised – application of Direction No. 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs[2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
Doan v Minister for Home Affairs [2019] FCA 1172
FYBR v Minister for Home Affairs[2019] FCA 500
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
3 September 2019
background

This is an application by NYYK (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 6 June 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant first arrived in Australia on 23 March 2012 by boat as an Irregular Maritime Arrival. The Applicant applied for a Protection visa on 17 July 2015 and this application was refused by the Respondent on 7 June 2016. An application for review was made to the Immigration Assessment Authority (“IAA”). The refusal decision was affirmed by the IAA on 18 July 2016. The Applicant sought judicial review of the IAA decision in the Federal Circuit Court and that application was dismissed on 10 August 2018. On 30 August 2018, the Applicant filed a notice of appeal in the Federal Court to appeal from the decision of the Federal Circuit Court. That appeal has yet to be determined.
On 4 October 2017, the Applicant was convicted of two counts of “Indecent assault person under 16 years of age”. On the first count, the Applicant was sentenced to 12 months imprisonment with a non-parole period of eight months and for the second count, the Applicant was sentenced to six months imprisonment. It appears that the Applicant was held in remand or immigration detention from 2 March 2017 until his conviction on 4 October 2017 when he was imprisoned for his offences. It appears he was released from criminal custody on 1 November 2017 and was taken into immigration detention.
On 11 February 2019, the Applicant lodged an application for a Bridging visa so that he could be released from detention pending the outcome of his appeal before the Federal Court.
On 6 March 2019, the Department sent the Applicant a Notice of Intention to Consider Refusal of his Bridging visa application (“NOICR”) as his visa application was being considered for refusal under section 501 of the Act.
On 2 April 2019, the Department sent the Applicant further information regarding the possible refusal of his Bridging visa application. That information was an Australian Criminal Intelligence Commission Report in relation to the Applicant issued on 25 March 2019 which disclosed his two convictions.
On 30 April 2019, the Applicant, through his then solicitor, provided a response in relation to the NOICR.
On 6 June 2019, the Minister’s delegate refused the Applicant’s application for the grant of a Bridging visa. The Applicant was notified of the refusal decision by email sent to the Applicant’s representative on 11 June 2019.
On 17 June 2019, the Applicant applied to the Tribunal for review of the Minister’s delegate’s decision of 6 June 2019 to refuse the Applicant a Bridging visa.
The review application was heard by the Tribunal on 15 August 2019. For the reasons below, I have found that the decision of the Minister’s delegate to refuse the Applicant’s application for a Bridging E visa should be affirmed. The Tribunal considers that this is the correct decision in this case.
issues
Section 501(1) of the Act provides:
“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. “
The two issues are:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character; and if so
·whether the Tribunal considers that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, should be exercised.
If the Applicant satisfies the Tribunal that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under section 501(1) of the Act is not enlivened.
If the Applicant does not satisfy the Tribunal that he passes the character test, the discretion in section 501(1) of the Act to refuse to grant him a visa is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in section 501(1) of the Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa not be exercised.
Evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A19 and the document tendered into evidence by the Respondent and marked as exhibit R1. The evidence contained in these documents is discussed throughout these Reasons: see “Annexure 1”. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence is provided below from paragraph 40 of these Reasons.
does the Applicant pass the character test?
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (“ACIC”) Criminal History Check for the Applicant dated 2 April 2019 shows that on 4 October 2017, the Applicant was convicted of 2 counts of “Indecent assault person under 16 years of age”. On the first count, the Applicant was sentenced to 12 months imprisonment with a non-parole period of eight months and for the second count, the Applicant was sentenced to six months imprisonment. The sentences were to be served concurrently.
The “Agreed facts” to which the Applicant pleaded guilty are contained in pages 142 to 144 of the G Documents. This information will be discussed further below.
The Tribunal is satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
should the discretion to cancel the Applicant’s visa be exercised?
In considering whether to exercise the discretion in section 501(1) to refuse to grant an Applicant a visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether to refuse to grant an Applicant a visa
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of visa refusal are contained in Part B of the Direction.
Paragraph 11 of the Direction provides for three primary considerations. 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.
Paragraph 12 of the Direction provides for other considerations. They 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.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (Direction 79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 of the Direction provide a framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa. The principles in paragraph 6.3 are as follows:
(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 women or children or vulnerable members of the community such as 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 considerations in the Direction that will be relevant in the present case may be significantly different from those in the usual case where the outcome of the Tribunal’s decision may determine whether an Applicant will be allowed to remain in Australia. This is especially evident in this case regarding the consideration of Australia’s international non-refoulement obligations.
In the present case, the Applicant was refused a Bridging visa. He currently has an appeal before the Federal Court seeking review of the Federal Circuit Court’s decision to dismiss his application for judicial review of the IAA’s Protection visa decision. If he is successful in his current application before the Tribunal, then it is likely that he will be granted a Bridging visa and released from immigration detention. That Bridging visa is likely to remain until proceedings relating to his application for a Protection visa are ultimately determined. If he is unsuccessful in his current application before the Tribunal, he will remain an unlawful non-citizen and be required to remain detained pursuant to sections 189 and 196 of the Act. If he is ultimately successful in being granted a Protection visa, he will be allowed to remain in Australia. If he is not ultimately successful in being granted a Protection visa, it is likely that he will be removed from Australia pursuant to section 198 of the Act.
The current proceedings in this Tribunal will not determine whether the Applicant is allowed to enter or to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Minister’s Department and the Tribunal and evidence given by witnesses at the hearing in response to questions in cross examination and from the Tribunal.
Details of Offending
The statement of Agreed facts from the Campbelltown Local Court to which the Applicant pleaded guilty provides:
1.The Offender in the matter is [Applicant’s name redacted] (20 years of age).
2.The victim, [victim’s name redacted] (13 years of age) and the offender have known each other since September 2015, when the offender first approached the victim. He would wait at either Parramatta or Pendle Hill railway station for the victim and speak to her on her way to school. The pair exchanged phone numbers on the 1st June 2016. The victim told the offender her age.
3.From that time, the offender and the victim communicated through "WhatsAp", a messaging service. The pair exchanged messages of affection towards each other.
4.About 1.30am on the 6th June 2016, the offender asked the victim for her address so he could attend the location to hug her. The victim supplied the offender with her address and he arrived a short time later.
5.The offender and victim initially spoke through the front window of the home. After a few minutes, the Offender stated he wanted to come inside. The victim was reluctant to allow him in. The offender eventually persuaded the victim to allow him entry, by stating words to the effect that if she did not allow him in, it meant she did not love or trust him.
6.After opening the door, the offender hugged the victim. The offender asked the victim to show him her bedroom. The victim walked the offender to her bedroom which she shared with her 6 year old sister, [victim’s sister’s name redacted], who was asleep within the room at the time.
COUNT 1
7.When the victim opened the door and showed the offender her room, the offender pushed the victim onto the bed and started to touch her stomach whilst kissing her on the face. The offender said to the victim that he wanted to feel her body and reached up the victim's top and touched her breasts over her bra. The touching lasted for about a minute. The victim felt scared, asked him why he was doing this and told him to stop, the victim managed to push the offender away and told him she would talk to him outside the bedroom.
COUNT 2
8.The victim then entered the lounge room where she sat on the sofa. The offender followed the victim into the lounge room and pushed her on to her back. The offender pulled down the victim's pants and his own pants, and lay on top of the victim. The victim could feel the skin of the offender's legs on her skin.
9.The offender tried to kiss the victim on her neck and lips, then touched her on the stomach and breasts, over her bra, the offender trying to lift it up, which lasted about a minute. The victim felt scared and told the offender to go.
10.Whilst in the lounge room, the victim heard her younger sister [victim’s sister’s name redacted], leave their bedroom and enter her parent's room. The victim told the offender to leave, and the offender ran from the family home, leaving behind his black sandals.
11.The victim's parents, [victim’s parent’s names redacted] left their bedroom and had a conversation with the victim where they were made aware of the circumstances. The victim's father, [victim’s father’s name redacted], called the offender and asked him to return to the premises so they could speak with him. A short time later the offender returned to the location and spoke with the victim and her parents.
12.During the conversation, the offender made admissions to both parents that he was aware the victim was only 13, and he was 20 years of age, and that his conduct was wrong. The offender claimed that he "loved their daughter and would not do anything bad to her."
13.[Victim’s father’s name redacted] called 000 and reported the matter to Police. As he made the call, the offender ran away from the premises.
14.Later that morning, the victim and her parents attended Merrylands Police Station and reported the offences.
15.About 8.30pm on the 7th June 2016, [victim’s father’s name redacted], the father of the victim, received a phone call from the offender. The offender asked [victim’s father’s name redacted] what they had told Police as he saw them at the house a short time after the offences. [Victim’s father’s name redacted] informed the offender he did not wish to speak with him to which the offender replied that he was now in Melbourne, so they had nothing to worry about.
16.On 21 September 2016, the Fairfield Local Court issued a warrant for the apprehension of the offender. The offender was arrested by Victoria Police in Melbourne on 2 March 2017.
17.The offender was detained until the Department of Immigration placed the offender, as an unlawful citizen, at Maribyrnong Detention Centre.
18.On 24 March 2017 the offender was transported to Villawood Detention Centre so that he could be charged with the warrant. On 28 March 2017, Police retrieved the offender from the Detention Centre and transported him to Bankstown Police where, with the assistance of a telephone Tamil interpreter, he was charged with the offences before the Court.”

The Applicant indicated that he had not seen or agreed to the Agreed facts prior to pleading guilty. He said that the first time that he had seen the Agreed facts was when he received the G documents from the Respondent.
The Respondent’s solicitor took the Applicant through the Agreed facts in cross-examination.
The Applicant said that he relocated from Brisbane to Sydney in 2015 in search of employment although he was unsure of the date when he relocated.
He said that after he arrived in Sydney he travelled to, and spent three weeks or so in, Melbourne looking for work unsuccessfully before returning to Sydney.
The Applicant said that at sometime in 2015 he saw the victim on a train. He said that they smiled at each other.
The Applicant said that he and the victim saw each other between six and 10 times before June 2016 but never spoke and simply acknowledged each other by smiling. The Applicant said that the victim was always dressed in school uniform when he saw her. The Applicant said that on 1 June 2016, he saw the victim at a train station. He said that the victim was dressed in a school uniform. He said that the victim was standing with another girl who was also in school uniform. He said that the other girl looked to be between 10 and 12 years of age. The Applicant said that he approached the victim and said words to the effect of “Hi, how are you? Can I have your phone number?” The Applicant said that the victim gave the Applicant her phone number but said nothing to him. He said that he contacted her later that day by text message. He said that prior to 6 June 2016 the victim had never spoken to him in person.
The Applicant said that two or three days after they had exchanged phone numbers he and the victim began exchanging messages of affection where they would both indicate to each other that they loved one another.
The Applicant indicated that in June 2016, a friend in Brisbane had agreed to purchase his car from him. The Applicant said that on 5 June 2016, he slept during the day as he intended to begin driving from Sydney to Brisbane late that evening or early the next morning to deliver his car to the purchaser in Brisbane. The Applicant said that he received a text message from the victim at about 11.30 that evening after which they swapped text messages. The Applicant indicated that, as he was driving to Brisbane that evening, he wished to see the victim in person before departing for Brisbane.
The Applicant said that he asked the victim for her address, indicated that he wanted to hug her and arrived at her house at about 1.30 in the morning. He admitted that the victim was reluctant to open the door when he first arrived. He said that he drove away and sent a message to the victim indicating that if she did not let him in that she did not love or trust him. He said that he returned to the victim’s house where the victim opened the door and hugged the Applicant. He said that she was crying. The Applicant indicated that he hugged the victim and that he may have kissed her while standing outside the residence.
The Applicant indicated that the victim went inside to check that her six-year-old sister was still asleep in their shared bedroom. The Applicant said that he followed the victim into the house and into her room where they observed the victim’s six-year-old sister asleep. The Applicant indicated that while the victim was observing her sister, he approached her and hugged her from behind. He said that he may have accidentally touched her breasts over her clothing as he hugged her from behind.
Under cross-examination by the Respondent’s solicitor, the Applicant indicated that he could not remember whether he pushed the victim onto the bed or whether he started to touch her stomach whilst kissing her on the face. He denied that he told the victim that he wanted to feel her body. He said that he may have accidentally touched her breasts over her clothing when he hugged her from behind. The Applicant said he could not remember whether the victim told him to stop or pushed him away from her.
The Applicant indicated that he and the victim entered the living room and sat on the sofa together and that they may have hugged. The Applicant indicated that he could not remember pushing the victim onto her back, pulling down the victim’s pants, pulling down his own pants, lying on top of the victim, trying to kiss the victim on the neck and lips, touching her stomach and breasts, trying to lift up her bra or that the victim told the Applicant to leave.
The Respondent referred to a police customised report which was before the Tribunal. That report relevantly provided:
“The Accused and the Victim have known each other since September 2015, however only exchanged phone numbers on the 1st June 2016. Prior to this, the Accused would wait at Parramatta or Pendle Hill train station for the Victim and would speak to her on her way to and from school, after or before she got off the train. From the 1 June 2016, the Accused and the Victim would communicate through the “WhatsAp” mobile application where a number of messages were sent between the parties in relation to the love they have for each other. None of these messages ever contained anything sexually explicit. About 1:30 AM on 6 June 2016, the Accused sent the Victim a message asking her for her address so he could attend the location.
…
The Victim’s father,…….. has called the Accused and asked him to return to the premises so they could speak with him. A short time later the Accused returned to the location and spoke with the Victim and her parents. During this conversation, the Accused made admissions to both parents that he was aware that she was only 13 and he would go to gaol for 14 years, but stated they loved each other and would be married in four years. In conclusion, the Accused turned to the victim and stated, “I’ll see you in 14 years”. [Victim’s father’s name redacted] has then told the Accused he was calling Police and he commenced calling 000. When the Accused was told this, he has once again run from the location and was last seen leaving the driving off on Targo Road in his motor-vehicle.
…
Therefore, a warrant was applied for and granted for his arrest by Magistrate….. at Fairfield local Court on 21 September 2016……… In March 2017, Merrylands Detectives received notification that the Accused was in the custody of Immigration at Villawood Detention Centre. About 10:30 AM on 28 March 2017, Police attended Villawood Detention Centre where the Accused was placed under arrest, cautioned and conveyed to Bankstown Police Station where he was booked into custody.”
Under cross-examination the Applicant said that he did not know whether the victim’s sister went to her parents’ bedroom, whether the victim told the Applicant to leave, whether he ran from the house, whether he left his black sandals behind, whether the victim’s father called the Applicant or whether he went back to the house. However, the Applicant indicated that he thought he remembered speaking with the victim’s parents in the house. It was put to the Applicant that he told the victim’s parents that he knew that the victim was only 13 years old. The Applicant insisted that he was unaware that the victim was 13 years old. He said that he only found out that the victim was 13 years old after the victim’s parents told him.
The Applicant said that he did not remember telling the victim’s parents that he knew that the victim was 13 years old. He denied that he said that he would go to gaol for 14 years. He said that he did not remember telling the victim’s parents that he loved the victim or that they would be married in four years. He also indicated that he did not remember whether he said words to the effect of “I’ll see you in 14 years” to the victim. The Applicant said that he could not remember whether he told the victim’s parents that he was 20 years old at the time. He said that he could not remember admitting to the victim’s parents that he knew that his conduct was wrong. The Applicant said that he did not remember telling the Applicant’s parents that he loved the victim and would not do anything bad to her. The Applicant said he did not remember whether the victim’s parents called the police. He said that he could not remember running from the premises after the victim’s parents commenced calling the police.
The Applicant indicated that after he left the victim’s house he drove his car to Brisbane. He said that he had expected to receive payment from the buyer of the car and to return to New South Wales. However, the Applicant said that the buyer did not pay him so he remained in Brisbane from June 2016 to around November 2016.
The Applicant said that in November 2016 he flew to Melbourne. He said that at some point in March 2017, he heard from friends that he was wanted by police in relation to his conduct on 6 June 2016. He said that at this point, some eight or nine months after the offending, he realised that what he had done was wrong and turned himself in to police. This appears to be at odds with the police records which indicate that the police were informed that the Applicant was being held at Villawood Immigration Detention Centre (“VIDC”).
The Respondent’s solicitor put to the Applicant that on 7 June 2016, the Applicant called the victim’s father. The Applicant indicated that he could not remember whether this had occurred. The Applicant said he did not remember whether he had seen the police attending the victim’s house. He said that he did not remember telling the victim’s father that he did not need to worry about the Applicant anymore because he was living in Melbourne.
The Tribunal asked the Applicant questions about the night of the offending. This time the Applicant said that he remembered kissing and hugging the victim in the living room on the sofa. The Applicant maintained that he could not remember removing his pants or the victim’s pants or lying on top of her. Contrary to his previous evidence, the Applicant said that he remembered the victim’s parents entering the living room. He admitted that he ran from the house as he was scared of the victim’s parents. He admitted that he was scared because he knew that he was not supposed to be in the victim’s parent’s house in the early hours of the morning with their 13-year-old daughter. Contrary to his previous evidence, the Applicant admitted that he received a telephone call from the victim’s father and returned to the house. The Applicant said that he told the victim’s parents that he loved the victim and then they informed him for the first time that she was 13 years old. The Applicant said that prior to this he had no idea that the victim was 13 years old.
The Tribunal pointed out to the Applicant that his written evidence, statements from his supporters and records created by psychiatrists and counsellors, suggested that the reason for the offending was that the Applicant was unaware that it was illegal and socially inappropriate for a 20-year-old man to attend upon a 13-year-old girl at 1.30 in the morning and to indecently assault her. The Applicant’s evidence in relation to this issue was confusing. On the one hand, the Applicant gave evidence that he did not know that such a relationship was illegal and socially inappropriate. He said that he only discovered this once he had been detained or shortly before he was detained. However, according to the Applicant’s evidence during the hearing, he had no idea that the victim was under 16 years old and indeed insisted that he thought that she was between 16 and 18 years of age. This, in turn, appeared to be inconsistent with the Applicant’s admission that he ran from the victim’s house when he was caught by the victim’s parents as he knew that he wasn’t supposed to be in the victim’s parents’ house in the early hours of the morning with their 13-year-old daughter. It is also inconsistent with the Agreed facts document which clearly indicates that the victim had told the Applicant her age before he attended on her at her home on 6 June 2016.
In addition, the Applicant admitted to the Tribunal at the hearing that when he arrived in Australia as a 16-year-old in 2012, he knew that it was not socially acceptable in Sri Lanka for an adult man to attend upon a 13-year-old girl in her family’s home in the early hours of the morning and to indecently assault her. The Tribunal asked the Applicant why, if he knew that such actions were not acceptable in Sri Lanka, he had thought it was acceptable in Australia. The Applicant said that he had not been thinking at the time of his offending, and that he had simply wanted to hug the victim before he left for Brisbane. It was suggested to the Applicant that he chose to visit the victim in the early hours of the morning at her house, rather than meeting in the daytime in public, as he had intended to indecently assault the victim. The Applicant denied this saying that the timing of his visit was determined solely by the fact that he had planned to depart from Sydney to Brisbane in the early hours of the morning and wanted to see the victim prior to his departure.
The Applicant said that he would be greatly negatively affected if his application for a Bridging visa was unsuccessful and he was required to remain in detention pending the ultimate outcome of proceedings relating to his Protection visa application. He said that he had been traumatised by the harm he had suffered in Sri Lanka. The Applicant said that he had been self-harming while in detention and had previously been suicidal. He said that the last time that he had attempted self-harm was when his application for judicial review in the Federal Circuit Court had been dismissed in August 2018. The Applicant told the Tribunal that he had, at one point, requested that his penis be surgically removed in order to show that he presented no risk to the community so that he could be released from detention.
The Applicant indicated that while in immigration detention, he had been required to watch footage from World War I and World War II in order to obtain credit so that he could telephone family members in Sri Lanka. He said that watching old war footage was extremely traumatising for him and brought back memories of the harm that he says he suffered while in Sri Lanka.
The Applicant said that there was no risk that he would reoffend if he was released into the community. He said that he had been extremely well behaved while in immigration detention. He said that he had been visited by many people including women and children and had never offended against any of them while he was in detention. The Applicant said that he was extremely remorseful for his conduct in the past, that he now realised that his relationship with a 13-year-old was inappropriate and that he would never reoffend.
The Applicant referred to a clinical entry regarding the Applicant made by a psychiatrist on 1 August 2019 which was before the Tribunal and relevantly read as follows:
“In my opinion his ongoing risk of reoffence [sic] is low. I believe that he is genuinely remorseful about his previous actions and that, in part, his previous actions were contributed to by a lack of understanding of appropriate social etiquette in this part of the world. His time in detention with input from community visitors and mental health service, has helped him to understand appropriate male female relationships. There is no suggestion of any paraphilic propensity. His prolonged time in detention has allowed maturation of his frontal lobe and personality development which again makes him at less risk to others. This is evident by his recent behaviour in detention and his altruism and growing vegetables for community groups. His English has also improved which has helped with his integration into the Australian community. [Applicant’s name redacted] suffers from chronic PTSD which has been aggravated by the showing of war documentaries in activity classes. Previous self-harm behaviour but no recent attempts and no suicidal ideation. Risk of self-harm and suicide is low.”
There were numerous other psychological reports and treatment summaries in relation to the Applicant before the Tribunal but only the one mentioned above included an assessment of the Applicant’s risk of re-offending. The various reports indicate that the Applicant has had a history of self-harm that he suffers from PTSD, anxiety and depression. The reports indicate that the Applicant has been well-behaved during his time in detention. The Applicant has also been involved in charitable causes including shaving his hair for charity and growing vegetables for charity.
The Applicant has had regular sessions with counsellors and psychiatrists including ongoing assessment and treatment by the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”).
The Tribunal received numerous letters of support for the Applicant. These were primarily written by members of the public who visit VIDC to provide their support to detainees. The letters of support contained in the G documents do not make reference to the Applicant’s criminal offending. They indicate that the Applicant is of good moral character, that he is pleasant and courteous and has been involved in charitable and religious activities.
The Applicant provided a number of additional letters of support to the Tribunal. Most of these letters acknowledge that the Applicant has been convicted of offences. Almost all of the letters which acknowledge the Applicant’s offending appear to suggest the Applicant was unaware that it was illegal and socially inappropriate to indecently assault a 13-year-old girl. This is contrary to the Applicant’s evidence during the hearing. It also appears from some of the statements of the Applicant may have sought to downplay the nature of his offending to the authors of the letters. For example, one of the letters indicates that “he pleaded guilty to indecent assault as his lawyer said he would be treated more leniently if he pleaded guilty, although the assault was more of a kiss and a cuddle…”. The letters provided to the Tribunal indicate that the Applicant is considerate, well mannered, intelligent and has good English language skills. The letters also indicate that the Applicant has been involved in charitable and religious activities. The letters indicate that the authors believe that the Applicant does not present a risk of reoffending as he is now aware that it is unlawful and socially appropriate to indecently assault young girls.
Five witnesses were called to give evidence before the Tribunal. All five witnesses testified that the contents of their statements were true and correct. Because of the effect of section 500(6H) of the Act, the evidence of the witnesses was limited to that which was contained in their statements.
None of the psychiatrists, psychologists or counsellors who made notes or written reports in relation to the Applicant’s psychological well-being were made available for cross-examination.
Primary consideration A: Protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa Applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that decision-makers should give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)   The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)   The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) 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 under section 197A of the Act;
e) 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;
f)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)   The cumulative effect of repeated offending;
i)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence, summarised the applicable principles as follows at [78]-[79]:
“(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The Applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.”
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP, stated at [92]:
“…The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.”
As in HZCP and LQZW, the convictions (and sentences imposed) in question in this case were a precondition to the decision under subsection 501 of the Act and the exercise of the discretion by the Tribunal. In the present case, as in LQZW, the Tribunal has to proceed on the basis that the Applicant did commit the offences for which he was convicted and the essential facts upon which the offences were based and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
Thus, the Tribunal accepts the factual basis for the convictions as stated in the “Agreed facts” document. To the extent that the Applicant’s version of events is inconsistent with the agreed facts, the Tribunal rejects the Applicant’s version and accepts the information contained in the “Agreed facts” document. However, the Tribunal is willing to accept aspects of the Applicant’s evidence in relation to the circumstances surrounding the offences. The Tribunal does not do so in any way to impugn the convictions themselves, but rather to understand the circumstances and context in which the offending occurred.
The Tribunal accepts the information in the Agreed facts and the police report that the Applicant met the victim in September 2015 and would speak with her at the train station on her way to school. The Tribunal rejects the Applicant’s claim that the first time he spoke with her was when they exchanged telephone numbers on 1 June 2016. The Tribunal finds that the Applicant attended the victim’s home at around 1:30 am on 6 June 2016. The Tribunal accepts that initially the victim refused to allow the Applicant to enter her home. The Tribunal finds that the Applicant used manipulative language in order to persuade the 13-year-old victim to allow him to enter the home. The Tribunal accepts that the Applicant told the victim that if she did not allow him in it meant that she did not love or trust him.
The Tribunal finds that the Applicant asked the victim to show him her bedroom. The Tribunal finds that once the Applicant and the victim were in her bedroom that the Applicant pushed the victim onto the bed and started to touch her stomach while kissing her on the face. The Tribunal finds that the Applicant told the victim that he wanted to feel her body and reached up the victim’s top and touched her breasts over her bra for about a minute. The Tribunal finds that the victim felt scared, asked the Applicant why he was acting as he was and told him to stop. The Tribunal finds that the victim managed to push the Applicant away.
The Tribunal finds that the Applicant and the victim entered the living room where the Applicant pushed the victim onto her back. The Tribunal finds that the Applicant pulled down the victim’s pants and pulled down his own pants. The Tribunal finds that the Applicant layed on top of the victim. The Tribunal finds that the Applicant kissed the victim on the neck and lips and then touched her on the stomach and breasts, over her bra and tried to lift the bra up. The Tribunal finds that the victim felt scared and told the Applicant to leave.
The Tribunal finds that the victim heard her younger sister enter her parent’s room and told the Applicant to leave. The Tribunal finds that the Applicant fled the house leaving behind his sandals. The Tribunal finds that the victim’s parents called the Applicant on his telephone and asked him to return to the house which he did. The Tribunal finds that the Applicant told the victim’s parents that he was aware that the victim was only 13 years old and admitted that he was 20 years of age. The Tribunal finds that the Applicant admitted to the victim’s parents that his conduct was wrong but that he told them that he "loved their daughter and would not do anything bad to her."
The Tribunal finds that the day after the offending when the Applicant was in Brisbane, he called the victim’s father and asked the victim’s father what he had told police about the incident. The Tribunal finds that the Applicant told the victim’s father he was in Melbourne, so they had nothing to worry about.
The Tribunal accepts the Applicant’s evidence that when he arrived in Australia he knew that it was socially unacceptable in Sri Lanka for an adult man to attend upon a 13-year-old girl in the early hours of the morning at her family’s home. The Tribunal finds that at the time of the offending, the Applicant knew that the victim was 13 years old and knew very well that it was socially unacceptable in Australia for an adult male to indecently assault a 13-year-old girl in her home in the early hours of the morning.
The Tribunal finds that the Applicant has attempted to downplay the seriousness of his offending, both before the Tribunal and to those who have provided statements supporting him.
The nature of the Applicant’s offending has been described in detail in the agreed facts above. It involved manipulating a 13-year-old girl into allowing the Applicant access to her home at 1.30 in the morning and then indecently assaulting her in her home.
The offences which the Applicant has committed were sexual crimes which involved elements of violence (where the Applicant pushed the victim onto the bed and onto her back on the sofa) against a vulnerable young girl.
The Applicant was found guilty of two counts of indecent assault of a child under the age of 16. Regarding the first count, the Applicant was sentenced to serve 12 months imprisonment with a non-parole period of eight months and on the second count the Applicant was sentenced to six months imprisonment. The periods of imprisonment were to be served concurrently.
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. However, the Tribunal has found that he has tried to downplay the seriousness of his offending before the Tribunal. The offences were not committed in another country. The offences were not committed while the Applicant was in immigration detention or during an escape from immigration detention.
After careful consideration, including consideration of the matters listed in paragraph 11.1.1(1) of the Direction the Tribunal considers that the Applicant’s offences of a sexual nature against a female child are very serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) of the Direction provides that a decision-maker 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. Paragraph 11.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) provides for 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.
In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:
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 the 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 intended stay in Australia.
Paragraph 11.1.2(4) of the Direction provides a decision-maker 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.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent or sexual offences.
The Tribunal finds that, if the Applicant were to re-engage in similar criminal conduct, it is likely that nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young girls. The effects of that kind of offending could include severe psychological injury and potential serious physical injury.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
As mentioned above, the Applicant provided to the Tribunal an entry on the Applicant’s Clinical Records by a psychiatrist dated 1 August 2019 which relevantly provides:
“In my opinion his ongoing risk of re-offence is low. I believe that he is genuinely remorseful about his previous actions and that, in part, his previous actions were contributed to by a lack of understanding of appropriate social etiquette in this part of the world. This time in detention with input from community visitors and mental health service, has helped him to understand appropriate male female relationships. There is no suggestion of any paraphilic propensity. His prolonged time in detention has allowed maturation of his frontal lobe and personality development which again makes him at less risk to others. This is evident by his recent behaviour in detention and his altruism and growing vegetables for community groups. English has also improved which has helped with his integration into the Australian community. [Applicant’s name redacted] suffers from chronic PTSD which has been aggravated by the showing of war documentaries in activity classes. Previous self-harm behaviour but no recent attempts and no suicidal ideation. Risk of self-harm and suicide is low.”
The Tribunal has also considered the various statements in support of the Applicant attesting to the Applicant’s good character and their belief that the Applicant poses no risk to the community.
The Tribunal does have some concerns about the above assessments. First, many of them appear to suggest that the Applicant’s offending was at least in part due to his lack of understanding that his actions leading to offending were inappropriate. Those views seem to be based on the assumption that the Applicant’s actions would have in some way been acceptable in Sri Lanka. The Tribunal rejects this premise. Indeed, the Applicant himself admitted during at the hearing that his actions would have been considered inappropriate in Sri Lanka. Further, as mentioned previously, the Applicant attempted to downplay the seriousness of his offences before the Tribunal and it appears that he has also attempted to downplay the seriousness of his offences to those who provided statements to support him. In addition, it does not appear that the psychiatrist employed any of the usual actuarial tools in reaching his assessment regarding the Applicant’s risk of reoffending.
The Tribunal is also concerned with the nature of the Applicant’s offending where he appears to have, over a period of some time, gained the trust of a young girl and used emotional manipulation to enter her home and indecently assault her.
The Tribunal is also concerned that the Applicant’s continued attempts to downplay the seriousness of his offending may tend to suggest that any rehabilitation which the Applicant claims may be limited.
The Tribunal has taken into account that if the Applicant is granted a Bridging visa, that visa will only allow the Applicant to remain in the community for a limited period of time, that is, until the final determination of proceedings relating to his Protection visa application. The limited time that the Applicant will spend in the community as the holder of a Bridging visa may limit the opportunity for the Applicant to reoffend while holding the Bridging visa.
Having taken into account all the matters mentioned above, the Tribunal is willing to accept the only direct assessment from a psychiatrist regarding the Applicant’s risk of re-offending which is before the Tribunal, being the assessment made on 1 August 2019. That is, the Tribunal accepts the Applicant presents a low risk of reoffending. However, the Tribunal maintains its concerns mentioned above regarding the risk of re-offending especially as the Tribunal has found that the Applicant’s offending was very serious. Accordingly, the Tribunal finds that although there is a low-risk the Applicant will reoffend, it nonetheless represents a real risk.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offences were very serious and the nature of the offences were that the Applicant gained the trust of a 13 year old girl and used manipulation to enter her home 1.30 in the morning and indecently assault her.
The Tribunal has found that if the Applicant were to reoffend, it is likely that nature of the harm to victims would be that they would suffer from appalling sexual crime. It would be likely that the victims would be young girls. The effects of that kind of offending could include severe psychological injury and potential serious physical injury.
The Tribunal has taken into consideration the principle that Australia has a low tolerance of any criminal conduct by visa applicants. The Tribunal has also considered that it is likely that the Applicant will remain in Australia until the proceedings relating to his application for a Protection visa are ultimately determined.
After giving much thought to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration weighs in favour of refusal of the Applicant’s Bridging E visa application. The Tribunal considers that the Applicant’s conduct in the past was very serious and that there is a low but real chance that the Applicant will reoffend if he is released into the community on a Bridging visa.
The Tribunal attributes significant weight to the primary consideration of the protection of the Australian community in favour of refusal of the Applicant’s Bridging visa application.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa.
Neither party has argued that this consideration is relevant in the current matter and no issue arises on the material before the Tribunal. In these circumstances the Tribunal places no weight on this consideration.
primary Consideration C: The expectations of the Australian Community
Paragraph 11.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
While Doan was recently set aside by the Federal Court (Griffiths J) in Doan v Minister for Home Affairs [2019] FCA 1172 as being affected by jurisdictional error in the way that I dealt with the evidence of two experts, the Tribunal’s reasoning in relation to the consideration of the “expectations of the Australian community” was left undisturbed.
In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation. While Doan involved consideration of paragraph 13.3(1) of Part C of Direction 65 and the present case involves consideration of paragraph 11.3(1) of Part B of Direction 79, there are no material differences between these two paragraphs.
In addition, the fact that Direction 79 is relevant to this case, rather than Direction 65, has no material bearing on this case other than that the later Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes.
In Doan I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 11.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).

Since my decision in Doan, the Federal Court, on 11 April 2019, handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are: FYBR v Minister for Home Affairs[2019] FCA 500 (“FYBR”); and DKXY v Minister for Home Affairs[2019] FCA 495 (“DKXY”).
In FYBR her Honour Perry J concluded at [42]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese; Afu and YNQY.
In DXKY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.
However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. The Tribunal has taken into account that Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. The Tribunal has also taken into account that Australia has a low tolerance of any criminal conduct by visa Applicants.
Conclusion: Primary Consideration C
The Tribunal accepts that the Applicant breached the expectation of the community to abide by the law and that the community has a low tolerance for any criminal conduct by visa applicants who have only been in the community for a short period of time.
Overall, the Tribunal finds that, given the very serious nature of the Applicant’s offending against a young girl, the Australian community would consider the low risk of future harm to the community is unacceptable and that the Applicant be refused the grant of a Bridging visa to ensure that children in the community are protected from the low risk that the Applicant will commit sexual offences against them.
The Tribunal finds that this consideration weighs in favour of refusal of a Bridging visa to the Applicant. The Tribunal places moderate weight, against the Applicant, on the primary consideration of the expectations of the Australian community.
other considerations
Paragraph 12 of the Direction provides for other considerations. They 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.
International non-refoulement obligations
Paragraph 12.1 of the Direction 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 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 would be 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 W R) 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.
As mentioned above, these proceedings will not determine whether the Applicant is allowed to enter into, or remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the determination of proceedings relating to his protection visa application in the community, or whether he must await the outcome of those proceedings in detention.
As such, the outcome in these proceedings will have no bearing whatsoever on whether the Applicant will be returned to Sri Lanka in breach of Australia’s non-refoulement obligations.
In those circumstances, this consideration is not relevant to the present proceedings.
Impact on family members
Paragraph 12.2 of the Direction provides:
“Impact of visa refusal on immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
The Applicant has no immediate family members in Australia and the parties both agree that this consideration is not relevant in this matter.
Impact on the Applicant
The Tribunal has also considered the effect of refusal of a Bridging visa on the Applicant. While this consideration is not listed in paragraph 12 of the Direction, the matters which can be taken account into account as other considerations are not limited to the matters listed in that paragraph. The Tribunal considers that refusal of a Bridging visa would have a significant negative effect on the Applicant.
If the Applicant is refused a Bridging visa, he would be deprived of living in the community pending the outcome of proceedings relating to his Protection visa application in circumstances where the Applicant is currently suffering from PTSD, depression and anxiety. There is also the possibility that the Applicant may self-harm if he is unsuccessful in these proceedings as he did following the decision of the Federal Circuit Court to dismiss his judicial review application.
The Tribunal notes that if the Applicant is refused a Bridging visa, his time in detention will be limited. Although not certain, it appears that the Applicant’s appeal in the Federal Court will be determined in less than a year. If that application is successful, it is likely that the Applicant’s eligibility for a Protection visa will be revisited. If the Applicant is granted a Protection visa he will be released from detention. If the Applicant’s appeal before the Federal Court is unsuccessful, then, unless the High Court granted special leave to hear an appeal brought by the Applicant, he is likely to be removed from Australia.
The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on victims
Paragraph 12.3(1) of the Direction provides:
“Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;”
There is no direct evidence of the impact of a decision to grant a visa on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a refusal decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
Impact on Australian business interests
While the Applicant concedes that no business interests would be affected if the Applicant is denied a Bridging visa, he has argued that the Tribunal should consider that the Applicant intends to start a gardening business if he is released from detention. As there is no extant Australian business which would be affected by refusal of the Applicant’s Bridging visa application, the Tribunal places no weight on this consideration.
Conclusion: should the power to refuse the Applicant a visa be exercised?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly in favour of visa refusal in this case. The Tribunal has found that the Applicant’s offences were very serious and could cause much harm to Australian children if repeated. The Tribunal has found that there is a low but real risk that the Applicant will re-offend if he is released from immigration detention on a Bridging visa pending the ultimate outcome of proceedings relating to his Protection visa application.
The Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately in favour of visa refusal. The Tribunal has found that the consideration of impact on the Applicant weighs significantly against visa refusal. The Tribunal has found that the Applicant will be significantly adversely affected if he is not granted a Bridging visa.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour including the significant adverse effect of a Bridging visa refusal on the Applicant.
The Tribunal has found that the Applicant does not pass the character test and has decided that the discretion to refuse the Applicant a Bridging visa should be exercised.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse the Applicant’s application for a Bridging visa, is the correct decision.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

...........................[SGD]............................................
Associate
Dated: 3 September 2019

Date of hearing:

15 August 2019

Applicant:

Self-represented

Solicitor for the Respondent:

Mr A Keevers

Sparke Helmore Lawyers

DRAFT EXHIBIT REGISTER

File No      2019/3437................................................................................................................
Between     NYYK..................................................................................................... (Applicant)
And            Minister for Home Affairs................................................................... (Respondent)
Heard on
At               Sydney.....................................................................................................................
Before       Member T Eteuati....................................................................................................
Associate   .................................................................................................................................

Exhibit Number

Description of Evidence

Dated

A1

Applicant’s submissions, undated received 14 July 2019

A2

Applicant’s reply submissions dated 2 August 2019

A3

Letter of support, [name redacted] World Saiva Council Australia dated 18 June 2018

A4

Letter of support, Jodi McKay, Member for Strathfield, dated 27 August 2018

A5

Letter of support, [name redacted] Blue Mountains Refugee Support Group dated 30 July 2019

A6

Letter of support, [name redacted] Blue Mountains Refugee Support Group dated 31 July 2019

A7

Letter of support, [name redacted] dated 1 August 2019

A8

Letter of support, [name redacted] Asylum Seeker Interagency dated 5 August 2019

A9

Applicant’s further submissions received 9 August 2019

A10

Letter of support, [name redacted], Blue Mountains Refugee Support Group, undated

A11

Applicant’s IHMS External Referral Form dated 17 April 2018

A12

Medical report of Dr [name redacted] dated 28 June 2019

A13

Applicant’s IHMS records dated 1 August 2019

A14

Letter of support, [name redacted] Blue Mountains Refugee Support Group dated 3 August 2019

A15

Letter of support, [name redacted] dated 4 August 2019

A16

Summary of Psychological treatment for Applicant, [name redacted], STARTTS Counsellor dated 6 August 2019

A17

Letter of support, [names redacted], Supporting Asylum Seekers Sydney dated 6 August 2019

A18

Letter of support, [name redacted] dated 8 August 2019

A19

Letter of support, [name redacted] senior clinical psychologist dated 11 August 2019

R1

Page 6-9 of summonsed NSW Police Force documents (redacted)

Exhibit Number	Description of Evidence Dated
A1	Applicant’s submissions, undated received 14 July 2019
A2	Applicant’s reply submissions dated 2 August 2019
A3	Letter of support, [name redacted] World Saiva Council Australia dated 18 June 2018
A4	Letter of support, Jodi McKay, Member for Strathfield, dated 27 August 2018
A5	Letter of support, [name redacted] Blue Mountains Refugee Support Group dated 30 July 2019
A6	Letter of support, [name redacted] Blue Mountains Refugee Support Group dated 31 July 2019
A7	Letter of support, [name redacted] dated 1 August 2019
A8	Letter of support, [name redacted] Asylum Seeker Interagency dated 5 August 2019
A9	Applicant’s further submissions received 9 August 2019
A10	Letter of support, [name redacted], Blue Mountains Refugee Support Group, undated
A11	Applicant’s IHMS External Referral Form dated 17 April 2018
A12	Medical report of Dr [name redacted] dated 28 June 2019
A13	Applicant’s IHMS records dated 1 August 2019
A14	Letter of support, [name redacted] Blue Mountains Refugee Support Group dated 3 August 2019
A15	Letter of support, [name redacted] dated 4 August 2019
A16	Summary of Psychological treatment for Applicant, [name redacted], STARTTS Counsellor dated 6 August 2019
A17	Letter of support, [names redacted], Supporting Asylum Seekers Sydney dated 6 August 2019
A18	Letter of support, [name redacted] dated 8 August 2019
A19	Letter of support, [name redacted] senior clinical psychologist dated 11 August 2019
R1	Page 6-9 of summonsed NSW Police Force documents (redacted)