NZPC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 4443

NZPC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4443 (19 December 2022)
Division:GENERAL DIVISION
File Number: 2022/8102
Re:NZPC
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member S Burford
Date:19 December 2022
Place:Perth

The decision of the delegate of the Respondent, dated 29 September 2022, to refuse to grant the Applicant a Protection (Class XA) visa is set aside and substituted with a decision not to refuse the visa application under s 501(1) of the Migration Act 1958 (Cth).
................[Sgd]........................................................
Senior Member S Burford
Catchwords
MIGRATION – decision of delegate of Minister to refuse to grant the Applicant a protection visa – character test – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – family violence – best interests of children – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement – other consideration legal consequences of the decision and the prospect of indefinite detention – Applicant is a 29 year old man who arrived in Australia as a 16 year old – extent of impediments if returned to Sierra Leone – decision of the delegate of Minister to refuse to grant the Applicant a protection visa is set aside and substituted
Legislation
Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(a)
Migration Act 1958 (Cth) ss 36(1C), 36(1C)(b), 36(2)(a), 36(2)(aa), 36(2C)(b), 48A, 189, 195A, 197AB, 197C, 197C(3), 197C(3)(b), 197C(3)(c), 197D, 198, 499, 499(1), 499(2A), 500(1)(b), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(6)(c), 501(6)(c)(i), 501(6)(c)(ii), 501(6)(d), 501(7), 501(7)(c), 501A(2), 501CA, 501CA(4)(b)(i), 501E
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
BAL19 v Minister for Home Affairs [2019] FCA 2189
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179
KDSP v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Social Services, Fourth Action Plan – National Action Plan to Reduce Violence against Women and their Children 2010-2022
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
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 s501CA (22 December 2014)
Minister for Immigration and Border Protection (Cth), Direction No 75: Refusal of Protection Visas Relying on ss 36(1C) and 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) – paras 2, 3, 4(1), 4(1)(a), 5.1, 5.1(1), 5.1(2), 5.2, 6, 7, 8(1), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(d), 8.3, 8.3(1), 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4(1), 8.4(2), 8.4(2)(a)–(f), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1(1), 9.1(2), 9.1(3), 9.1(5), 9.1(6), 9.1(7), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4.1, 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Senior Member S Burford
19 December 2022
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 29 September 2022[1] to refuse to grant him a Protection (Class XA) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Migration Act).
[1] R1, G3.
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
THE ISSUES
The issues before the Tribunal are whether the Applicant passes the character test as defined in s 501(6) of the Migration Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ends on 27 December 2022.
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the decision of the delegate of the Respondent to refuse the Applicant’s Protection (Class XA) visa be set aside.
BACKGROUND
The Applicant is a 29-year-old citizen of Sierra Leone. He first arrived in Australia on 9 September 2009 when he was 16 years old, as a holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa.
On 14 July 2015, the Applicant was convicted in the District Court of New South Wales of the following three offences: ‘Aggravated break and enter and commit serious indictable offence - people there’, ‘Assault occasioning actual bodily harm (DV)’ and ‘Assault with act of indecency (DV)’.[2] For the ‘Aggravated break and enter and commit serious indictable offence - people there’ offence, the Applicant received nine years’ imprisonment with a non-parole period of four years, commencing 22 February 2014. For the ‘Assault occasioning actual bodily harm (DV)’ he received 45 months’ imprisonment with a non-parole period of two years, commencing 22 February 2013. The ‘Assault with act of indecency (DV)’ offence a conviction was recorded and this was taken into account in the context of sentencing.[3] The Applicant is currently in immigration detention at Yongah Hill.
[2] R1, G4, page 37.
[3] R1, G6, page 40.
On 27 June 2017, the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act, and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory.[4] The Applicant’s request for revocation of the Cancellation Decision was made on 15 August 2017.[5] On 3 July 2018, the delegate decided not to revoke the Cancellation Decision.[6]
[4] Migration Act ss 501(6)(a) and 501(7)(c); R1, G11, page 81.
[5] R1, G36.
[6] R1, G21, page 238-256.
On 24 July 2019, the Applicant lodged an application for a protection visa.[7]
[7] R1, G58, pages 1130-1158.
On 18 September 2019, a delegate of the Respondent refused to grant the Applicant a protection visa.[8]
[8] R1, G11, pages 81-100.
On 13 November 2019, the Migration and Refugee Division of the Tribunal made a decision to remit the Applicant’s matter to the Department for recondensation with the direction that the Applicant satisfied section 36(2)(a) of the Migration Act.[9]
[9] R1, G12, pages 101-113.
On 26 February 2021, the Applicant received a notice of intention to consider refusal of his visa application. He responded to that notice on 16 March 2021 through his representative.
On 29 September 2022, a delegate of the Minister exercised their discretion under section 501(1) of the Migration Act and refused the Applicant a protection visa. The Applicant was notified of this decision by an email sent to the Applicant’s representative on 4 October 2022.
On 4 October 2022, the Applicant lodged an application for review of that decision with the Tribunal.[10]
[10] R1, G2.
THE HEARING AND THE EVIDENCE
The hearing was listed for two days, 5 December 2022 and 7 December 2022 at the Tribunal Registry in Perth. The Applicant was transported from Yongah Hill Immigration Detention Centre on both days to appear in person. The Applicant was represented by Mr Nikjoo of Nikjoo Lawyers who appeared by MS Teams. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers. Ms Jones-Bolla also appeared by MS Teams.
On 5 December 2022, the Applicant gave evidence and was cross examined, however his evidence was not concluded at the end of the day and the hearing was adjourned.
On 7 December 2022, the hearing recommenced. The Applicant completed his evidence and the Tribunal heard evidence from the following witnesses:
·Ms KB, the Applicant’s partner;
·Pastor EK;
·Ms RL, the Applicant’s step-sister;
·Pastor AW;
·Mr MS, the Applicant’s brother; and
·Ms KG, the Applicant’s mother.
The Tribunal notes the Applicant’s mother gave evidence by telephone from Guinea where she was visiting on a mission visit.[11]
[11] Transcript, page 162.
The following documents were marked as exhibits:
·Applicant's updated statement, dated 2 November 2022 (Exhibit A1);
·Letter of Ms KG, dated 3 October 2022 (Exhibit A2);
·Letter of Ms KB, dated 5 October 2022 (Exhibit A3);
·Letter of Ms RL, undated (Exhibit A4);
·Letter of Mr MS, undated (Exhibit A5);
·Letter of Pastor EK, dated 18 October 2022 (Exhibit A6);
·Letter of Pastor AW, dated 20 November 2022 (Exhibit A7);
·Letter of Mr FL, dated 4 October 2022 (Exhibit A8);
·Letter of Ms SS, dated 6 October 2022 (Exhibit A9);
·Letter of Ms FG, undated (Exhibit A10);
·Letter of FT, undated (Exhibit A11);
·Character reference letter from Mr IB, undated (Exhibit A12);
·Letter of Ms GB, undated (Exhibit A13);
·Applicant's letter to victim, dated 13 May 2021 (Exhibit A14);
·Letter of senior pastor CB, dated 3 November 2022 (Exhibit A15);
·Letter of KK, dated 21 October 2022 (Exhibit A16);
·Medico-Legal Report by Dr Jai Nathani, Consultant Psychiatrist, dated 12 November 2022 (Exhibit A17);
·Assessment of section 36(1C) of the Migration Act 1958, dated 8 January 2020 (Exhibit A18);
·Department of Home Affairs – Request Checklist and Details (Exhibit 19);
·Letter by the Department of Home Affairs - Request for more information for a protection visa application, dated 28 October 2022 (Exhibit A20);
·Section 501G documents, labelled G1 to G59, comprising pages 1 to 1161 (Exhibit R1); and
·Respondent’s Tender Bundle (Exhibit R2).
Various Serco Individual Management Plan Reviews and other related documents were filed on 14 November 2022 and were marked for identification at the hearing. Where relevant, the Applicant drew the Tribunal’s attention to those parts of the material he wanted the Tribunal to have regard to. This was principally with respect to those records evidencing the Applicant’s good behaviour in detention. Where relevant, the material to which the Tribunal was referred is discussed below.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
Section 501(1) of the Migration Act is as follows:
(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.
Note: Character test is defined by subsection (6).
(Original emphasis.)
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(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; …
(Original emphasis.)
Direction No 90
The Tribunal is required to form a state of satisfaction as to whether the visa should be refused, reasonably and on a correct understanding of the law.[12] By reason of s 499(2A) of the Migration Act, in doing so it must comply with written directions about the performance of its functions or the exercise of those power which are given by the Minister pursuant to s 499(1) of the Migration Act. With respect to the exercise of power under s 501 and 501CA the current written direction given by the Minister is Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) which was made on 8 March 2021.[13]
[12] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Deng) (Halley J) at [119].
[13] Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA which was revoked on the same date; Direction No 90 paras 2-3.
Paragraph 5.1 sets out the objectives of Direction No 90. Sub-paragraphs 5.1(1) and (2) provide:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test … is liable for refusal of a visa or cancellation of their visa.
(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[14]
[14] Direction No 90 para 5.1(4).
In exercising the power under s 501(1), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[15]
[15] Direction No 90 para 6.
Paragraph 5.2 of Direction No 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under s 501. These principles 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)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction No 90 which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
In making a decision under s 501(1), the primary considerations to be taken into account by the Tribunal are:[16]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[16] Direction No 90 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[17]
(a)       international non-refoulement obligations;
(b)       extent of impediments if removed;
(c)       impact on victims;
(d)       links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[17] Direction No 90 para 9.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,

a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[18]
[18] Migration Act s 501(7)(c).
The Applicant’s original written submissions contended that the Applicant passed the character test by reference to section 501(6)(c) ((i) and (ii) referring to an assessment of the person’s past and present criminal and general conduct).[19] These submissions appeared to conflate the character test with the question of the exercise of the discretion to refuse the visa.
[19] Applicant’s Statement of Facts Issues and Contentions (SFIC), dated 8 November 2022 see para [45].
The Respondent submitted that the Applicant did not pass the character test by operation of s 501(6)(a) and s 501(7) because he had been sentenced to a term of imprisonment in excess of 12 months.[20]
[20] Respondent’s SFIC, undated, submitted on 23 November 2022, see pars [18] – [19].
In submissions in reply and at the hearing, the Applicant conceded he did not pass the character test.[21]
[21] Applicant’s 'Reply Submissions’.
The Tribunal finds that on 14 July 2015, the Applicant was convicted in the District Court of New South Wales of the following three offences: ‘Aggravated break and enter and commit serious indictable offence - people there’, ‘Assault occasioning actual bodily harm (DV)’ and ‘Assault with act of indecency (DV)’, for which he was sentenced to nine years’ imprisonment and 45 months’ imprisonment respectively.[22] As a result, the Applicant has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
[22] R1, G4, page 37.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[23]
[23] See Migration Act s 501CA(4)(b)(i)
SHOULD THE DISCRETION TO REFUSE THE VISA BE EXERCISED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, the discretion in s 501(1) of the Migration Act to refuse the visa should be exercised.
The Applicant submitted that the visa should not be refused because the Applicant has been of good character since the time of his offending and is rehabilitated. His offending was out of character and his behaviour since that time has demonstrated his capacity to be a productive member of the community. It is in the best interests of his nephews and young cousins that his visa not be refused so that he may maintain a strong relationship with them and support their families. He has strong ties to Australia, including an Australia partner, and faces the prospect of indefinite detention if the visa is refused as he cannot return to Sierra Leone and is the subject of a protection finding to that effect. The weight of these factors outweigh any considerations in favour of refusing the visa and the discretion to refuse the visa should not be exercised.
The Respondent submitted that the Applicant had engaged in various serious violent offending against an intimate partner. He has unmet treatment needs and remains a significant risk to the community. The expectations of the community are that the visa should be refused. While the children’s best interests may lie in the visa not being refused, this consideration weights less heavily given the relationship with the children is non parental and the Applicant’s history of family violence calls into question his capacity to be a positive influence in the lives of the children. While the Respondent conceded that the Applicant will not be removed to Sierra Leone, given the protection finding made with respect to him, and will remain in detention until such time as one or more of the administrative options available to the Minster are carried out. However, this consideration, and the Applicant’s ties to Australia do not outweigh the primary considerations of protection of the Australian community, family violence and expectations of the Australian community, having regard to the nature and seriousness of the Applicant’s offending. The Respondent submitted the discretion to refuse the visa should be exercised on that basis.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community and requires decision-makers to keep in mind 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[24]
[24] See also Direction No 90 para 8(1).
Paragraph 8.1(2) of Direction No 90 provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant’s submissions
The Applicant conceded the that his offences were very serious.[25] However, the Applicant made the following submissions with respect to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community:[26]
·The offences occurred over 10 years ago and arose from one incident;
·The Applicant was 19 years old at the time and suffering from undiagnosed mental health issues including complex post-traumatic stress disorder (PTSD);
·The sentencing Judge found the Applicant’s prospects for rehabilitation and not reoffending were good. This was consistent with his parole report;
·The Applicant’s conduct in immigration detention indicates good character and prospects for rehabilitation;
·The Applicant is receiving counselling and has completed numerous educational and rehabilitative courses in custody and in immigration detention; and
·The Applicant had been found by a delegate of the Minister not to be a danger to the Australian community and therefore was not a risk to the Australian community.
In light of these factors, the Tribunal should place less weight on the seriousness of the Applicant’s offending and should find the protection of the Australian community does not weigh in favour of refusing the visa.
[25] Applicant’s SFIC at para [14].
[26] Applicants’ SFIC at paras [5], [14] and [15].
The Applicant contended in his ‘Reply Submissions’ that to exercise jurisdiction to refuse the application for the visa:[27]
The Tribunal is required to reach a state of satisfaction, on reasonable grounds, that the applicant lacks ‘enduring moral qualities’ in a sense and to the extent he poses an unacceptable risk to the Australian community.
The Applicant cited the Federal Court decision in Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 at [48]-[56] in support of this proposition.
[27] Applicant’s ‘Reply Submissions’ at [1].
The Applicant submitted that for the Tribunal to reach such a state of satisfaction, the Applicant’s conduct to date, both criminal and general were ‘relevant considerations’.[28] The Applicant submitted that in doing so, the Tribunal should have regard to s 501(6)(c) and (d) as directly linked to and informing primary considerations 1 and 2 of Direction No 90.[29] The difficulty with the Applicant’s submissions with respect to s 501(6)(c) and (d) and the parts of the Direction in relation to those sections is that they relate to grounds on which the precondition for the power to refuse is being enlivened: that is the Tribunal not being satisfied that the Applicant passes the character test[30]. As conceded in the ‘Reply Submissions’ and at the hearing, in the Applicant’s case he does not pass the character test by operation of s 501(6)(a) because he has substantial a ‘substantial criminal record’, as defined by s 501(7). Having made findings that the Applicant has been convicted of an offence for which he was sentenced to more than nine years in prison, the Tribunal has reached the required level of satisfaction that he has a substantial criminal record and does not meet the character test.[31] As such, the discretion is enlivened and section 501(6) has no work left to do. As such, the Applicant’s submissions on this point were misconceived. However, the general point that in considering the Applicant’s conduct and his risk to the community, the Tribunal should have regard to evidence of positive aspects of his conduct as well as the evidence of criminal conduct, accords with the matters arising for consideration under Part 2 of Direction No 90 (as opposed to Section 2 of the Annexure relating to the Character test). Accordingly, the Tribunal has considered the Applicant’s submissions regarding general conduct and the Applicant’s ‘moral qualities’ in the context of the protection of the Australian community, family violence and expectations of the Australia community considerations.
[28] Applicant’s ‘Reply Submissions’ at [2].
[29] Applicant’s ‘Reply Submissions’ at [3].
[30] Section 501(1).
[31] Section 501(7)(c).
The Applicant also sought to place reliance on the s 36(1C) decision in support of its contention that the Applicant was not a risk to the Australian community. The Applicant submitted that ‘it is clear that the primary considerations 1, 2 and 4 of Direction 90 would be informed by the applicant’s past, and to date, criminal and general conducts’ citing the comments of Tamberlin J in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 at [26]. However, the Tribunal notes that was a decision with respect to whether the Applicant presented a danger to the Australian community and fell within the exception provided for in Article 33(2) of the Convention Relating to the Status of Refugees, in that he constitutes a danger to the community of Australia. That exception is reflected in s 36(1C) of the Migration Act. In the Tribunal’s view, his Honour’s comments and those of other cited cases considering s 36(1C) or Article 33(2) were not directly relevant to the Tribunal’s task in determining whether the visa should be refused having regard to the primary and other considerations expressed in Direction No 90. As such, the Tribunal had some difficulty following the submissions on this point.
The Applicant went on to cite Callinan and Steward JJ in KDSP v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 (KDSP) at [284] where their Honours noted:
If an applicant fails to satisfy s. 36(1C) they will not be eligible for a visa. In such a case, there will be no role for s. 501 to play as there will simply be nothing to refuse. If an applicant satisfies s. 36(1C), he or she may, like all other visa applicants in Australia, be subject to the Minister’s discretionary powers in s. 501. In this way, and in our view, ss. 36(1C) and 501(1) are cumulative requirements.
In that case their Honours were considering the application of s 501A(2) and s 501(1) in protection visa applications and in particular the relationship between 501 and s 36(1C).
The Applicant submitted that ‘the task, reaching the state of satisfaction required, for the Tribunal to find on reasonable grounds that he is a future risk to the Australian community is informed by the section 36(1C) decision’[32]. The Applicant cited several authorities for this proposition, including the decision of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179 (EBD20) at [25]-[35] in support of this submission.
[32] Applicants ‘Reply Submissions’ at [7] citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179 at [25]-[35]; KDSP at [284]; DOB18 v Minister for Home Affairs (2019) 269 FCR 636; [2019] FCAFC 63 at [72]-[89].
However, in EBD20 the Federal Court noted at [27] and [28] that:
Whilst the issues raised by s 36(1C)(b) and 501(1) might overlap, the statutory questions posed by the provisions are different in many respects. Section 36(1C) does not provide a discretionary power. Rather, it provides, through the mechanism of a criterion of eligibility for a protection visa, a limited exception to Australia’s non-refoulement obligation. Reflecting the language of Art 33(2), s 36(1C)(b) contains a requirement that the view taken by the Minister must be taken “on reasonable grounds”.
Section 501(1) confers a discretionary power to refuse the grant of any visa “if the person does not satisfy the Minister that the person passes the character test”. Section 501(1) does not expressly require any consideration to be given to whether a person is a “danger”. Unlike s 36(1C), s 501(1) applies to all visas. The discretion in s 501(1) is intentionally broad. One of the matters the Minister typically, if not invariably, takes into account in considering the discretion is risk to the Australian community.
In the Tribunal’s view, this distinction between the s 501 and s 36(1C) was lost in the Applicant’s submission which suggested the processes mirrored one another or were otherwise overlapping. The authorities make it clear this is not the case. If the Applicant does not meet the criteria for the grant of the visa, including where the exclusion in s 36(1C) applies to them, the protection visa must be refused. However, any visa may be refused on character grounds under s 501. Indeed, in EBD20, the Court noted it was not possible to say what the decision-maker considering whether 36(1C) applied to a protection visa applicant would have determined were they to consider the question of whether the applicant posed a risk to the Australian community under s 501.[33] These are two distinct questions and distinct processes of decision-making.
[33] At [42].
The Applicant’s submissions appeared to conflate the tasks undertaken under the separate sections of the Migration Act. In support of his contention, he provided copies of correspondence from the Department indicating the visa approval process was moving to the next stage, citing that material as evidence the visa should not be refused or to have the delegate’s decision treated as a mandatory relevant consideration by the Tribunal. However, the Courts have been clear that:[34]
Given that s 36(1C) and s 501 are different statutory powers directed to different purposes, it should not be implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1).,
[34] At [47].
Further the Court in EBD20 made it clear that while there was a duty to exercise the discretionary power in s 501 reasonably:[35]
[a]s a matter of principle, it is not irrational or inconsistent to decide under s 36(1C)(b) that there are not reasonable grounds for concluding that a person is “a danger to the Australian community”, but nevertheless to reach the conclusion that the person presents a sufficient level of risk to warrant exercising the discretion under s 501(1) not to grant a visa.
The Court noted that the Minister and the Tribunal were each looking at the level of risk to answer different questions. Those inquiries contained a common element, namely an assessment of the level of risk which an applicant for a visa posed. A conclusion that the level of risk is not such that the person was a “danger” for the purposes of s 36(1C)(b) does not mean that the level of risk is necessarily insufficient to warrant an exercise of the discretion in s 501(1).
[35] At [52].
While the Tribunal accepts that the decision of the Delegate with respect to s 36(1C) is information before the Tribunal to be taken into account in deciding whether to exercise the discretion, it is not a mandatory consideration. It is not binding on the Tribunal, both because it addresses a different question to that the Tribunal must consider. If the Tribunal considered itself bound by the s 36(1C) decision, the effect would be to fetter the discretion in s 501(1) in a way not contemplated by the Migration Act or the authorities.
The Respondent submitted that the two processes were distinct and the Tribunal was not bound by the s 36(1C) decision.
In the end, the Applicant submitted that the s 36(1C) decision was relevant to the consideration of the future risk posed by the Applicant and the Tribunal has given further consideration to that decision and the reasons provided below. With respect to the protection of the Australian community, the Minister contended that having regard to the very serious nature of the Applicant’s offending and the unacceptable risk to the community that he may reoffend, the protection of the Australian community weighs heavily in favour of refusing the visa.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date. In doing so, paragraph 8.1.1(1) of Direction No 90 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. These include “violent crimes and/or sexual crimes” (para 8.1.1(1)(a)(i)) and/or “crimes of a violent nature against women” (para 8.1.1(1)(a)(ii)). The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious, it does not limit the range of conduct that may be considered very serious.[36]
[36] Direction No 90 para 8.1.1(1)(a)(i)-(iii), See also Direction No 90 para 8.1(2)(a).
With respect to the nature and seriousness of the Applicant’s conduct, the Applicant conceded the Applicant’s offences were very serious.[37] However, the Applicant submitted that in assessing the seriousness of the conduct and the weight to be given to this consideration, the Tribunal should have regard to circumstances of the offences including that:[38]
·That the offences occurred over 10 years ago and arose from one incident;
·The Applicant was 19 years old at the time and suffering from undiagnosed mental health issues including complex PTSD;
·The Applicant had an otherwise unblemished record and had no prior or subsequent convictions for violent offending;
It was also suggested in oral submissions that the Applicant had not intended to harm the victim when he went to her workplace. When it was put to the Applicant’s representative that this seems to call for a factual finding at odds with the sentencing Judge’s findings, the Applicant clarified that he was not seeking to go behind the facts of the conviction.
[37] Applicant’s SFIC at para [14].
[38] Applicants’ SFIC at paras [14] and [15].

With respect to the nature and seriousness of the Applicant’s conduct, the Respondent submitted that:
·The Government is committed to the protection of the community and the Tribunal should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to the Australian community.’[39]
·Having regard to the prescribed factors in para 8.1.1 of Direction 90 the Applicant’s offending is very serious.
·The circumstances of the offending were serious, including having regard to the vulnerability of the victim, the circumstances of the offence and the harm which could have occurred including life threatening injury to the victim.
·The total effective sentence of 10 years imprisonment imposed reflects the seriousness with which the Courts viewed the Applicant’s offending.
·The Applicant’s prior driving offences increase the seriousness of his offending.[40]
[39] Respondent’s SFIC at para [20] referencing Part 8.1 of Direction 90.
[40] Respondent’s SFIC.
In the Tribunal’s view, there can be no doubt that the Applicant’s offending was very serious.
Clearly the most serious of the Applicant’s offences were those relating to the assault of his then partner on 4 November 2012. The Applicant and the victim had been in an intimate relationship for approximately two years before the offences. The Applicant plead guilty to the offences on 10 March 2015, when his trial was due to begin. He was sentenced for two offences:[41]
·Aggravated break enter and commit the serious indicatable offence of assault occasionally actual bodily harm, the circumstances of aggravation being that the Applicant knew a person was present in the dwelling. The maximum penalty for that offence was 20 years imprisonment and a standard non-parole period of five years (Count 1); and
·Assault occasioning actual bodily harm, which has a maximum penalty of five years imprisonment. There is no prescribed standard non-parole period for this offence (Count 2).
The Applicant also plead guilty to an offence of indecent assault which was taken into account in sentencing when considering deterrence and retribution in connection with the aggravated break and enter offence.
[41] R1, G6, page 40.
The circumstances of the offending were that the Applicant and the victim had been out with friends, later that evening the victim told the Applicant she wanted to end the relationship. She then went to work at a fulltime care facility for individuals with disabilities. She was the only staff member working that evening and the only other people at the facility were the severely disabled young people in her care. The circumstances were described by Judge Sides in sentencing in the following terms:[42]
[42] R1, G6, pages 41-44.
Not long after the victim commenced her nightshift at 11pm, she began to receive calls on her mobile phone from the Offender's [the Applicant’s] mobile phone. She did not answer at least five such calls. She then received a call from a number that on the screen of her phone was blocked and also a call from a number that was not blocked, but the person whose name was attached to it was not known to the victim. She answered this call but hung up immediately when she recognised the Offender's voice. The victim received some text messages from the Offender. One of these was received at two minutes past 11 in the evening. It stated: "Just pick up pls I do not want to come to ur work". The second, which was received at 12.28am on 4 November, read: "I'm coming over now". After receiving this message, the victim turned off the lights in the premises and ensured that all doors were locked.
At about 1am the victim heard the Offender calling out to her from outside. He continued to do this for about half an hour. He was calling out for the victim to open the door and saying he was sorry. She ignored him and continued with her work. After a while she heard some scuffling noises at the back. Although she assumed it was the Offender, she did not do anything about it because she was confident that the rear door was locked. However, the Offender removed the flyscreen covering the louvers next to the rear door and gained entry, probably by manipulating the locking mechanism on the rear door.
The victim looked up when she heard the Offender's footsteps coming down the hallway that led from the back door. He came and sat on the lounge next to her. The victim told the Offender to leave, but he said he was not going anywhere. When she asked him how he got into the place, he told her that he had used a broom through the window to open the back door. When she asked him again to leave he repeated his refusal.
The pair then engaged in a lengthy conversation about their relationship, the essence of which was the Offender did not want it to end. However, the victim held firm in her desire to have their relationship come to an end and that she did not want the Offender back. This conversation, according to the facts, lasted for about three hours. However, about 10 minutes into this conversation, the Offender stood up, walked to the nearby kitchen, removed a pair of latex gloves and put them on and then took them off and put them in the bin. He then put on a different pair of gloves and kept these on throughout the conversation. For obvious reasons these gloves are stored on the premises.
The victim though his behaviour in this regard was strange and asked him why he was wearing the gloves ad he responded by saying: "because I feel like wearing them".
At one point in the conversation the Offender said: "you're going to push someone to the point that they're going to do something they regret". When the victim asked the Offender what he meant by this he replied: "you've hurt me so much. I can't hurt you emotionally but someone is going to hurt you physically". The victim asked why he was saying it and the Offender replied that it was the truth: "that's what happens in life" he said. The victim threatened him that she would call the police if he became physical with her.
Eventually the Offender went into the kitchen again and changed the pair of gloves. The victim went about some of her duties and, while doing this, she saw the Offender pacing along the hallway still wearing the gloves.
At about 6.28am the victim was sitting on the lounge watching television.
The Offender continued to pace along the hallway and then quickly approached her from a position almost immediately behind her. He put his foot on the lounge. When the victim attempted to stand up, he put his right arm around her neck and applied pressure, using the inside of his elbow. He commenced to choke or strangle the victim while she struggled and attempted to break free of his grip. She put her fingers between her neck and his arm, scratching herself in the process. Her attempts to free herself failed and saliva began to come out of her mouth and she involuntarily urinated before losing consciousness. That is the last recollection she had of the incident.
The Offender then dragged the victim onto the floor in the lounge area, took a fire extinguisher that was located nearby and aimed the nozzle at the victim's mouth. He pressed the trigger and discharged a large amount of powder into the victim's mouth and throat, making it very difficult for the victim to breathe. It is this discharging of the powder from the fire extinguisher into her mouth and throat that gives rise to count 2.
The Offender then pulled down the victim's pants and underpants.
At about 6.50 a co-worker arrived to relieve the victim. He locked his car at about 6.52am and used keys to gain entry via the front door. As he was entering the front door, he heard the back door close, which was obviously the Offender leaving. He heard the victim's laboured breathing and other noises and went to her aid. She was still on the timber floor in the lounge room. She was on her back with both arms outstretched. He noticed the powder-like substance covering her entire face and the area immediately surrounding her head. He observed the victim struggling to breathe and not conscious. He also noticed her pants and underpants were around her ankles, exposing the body from the waist down. At this time he heard the engine of a car start, which was probably the Offender leaving.
The victim's colleague contacted triple-0 and, sometime thereafter, police and ambulance officers arrived. The ambulance conveyed the victim to hospital for treatment. While she sustained no permanent injury, she did sustain temporary injury and discomfort in the area of her eyes, throat and neck.
Violent crime, crimes of a violent nature against and women and family violence are to be viewed very seriously.[43] In the Tribunal’s view, the Applicant’s offending can fairly be characterised as having these features and accordingly is to be regarded as very serious offending. The Tribunal notes the sentencing Judge found that the aggravated break and enter offence was ‘well above the middle of the range of seriousness’.[44] In the Tribunal’s view, the seriousness of the offending is evidenced by the factual findings of the Court, detailed above, with respect to the offences. On appeal, Bathurst CJ found that the sentencing Judge was ‘justified in treating the offence as one which was objectively most serious’.[45]
[43] Par 8.1.1(1)(a)(i)-(iii) of Direction 90.
[44] R1, G6.
[45] R1, G7, page 73.
The Respondent drew attention to other aspects of the findings which supported an assessment of the offending as very serious, including;
·The victim was alone and vulnerable;
·The decision to break into the premises was premeditated;
·The presence of people with disabilities who would have been disturbed by the event; and
·The use of the gloves suggested an attempt to conceal his identity.
The Judge found the assault occasioning actual bodily harm offence to be towards the ‘upper end of the range’. The Court considered that the victim was vulnerable, the discharging of the fire extinguisher into her throat and mouth had potentially fatal consequences and that the victim will likely suffer long-term emotional and psychological problems as a result of the attack.[46] With regard to the seriousness of the assault, the sentencing Judge noted that:[47]
It is possible that it might have resulted in chemical burns or it is possible that the powder might have, in some fashion coagulated in the victim’s throat and become life threatening. None of those things in fact transpired, but that does not mean that the Court should exclude from its consideration such risks or possibility. It is irrelevant, in the Court’s view, to take such matters into account in assessing objective criminality.
The sentencing Judge also rejected the Applicant’s claim he had attempted CPR on the victim or had otherwise attempted to revive her. He noted the assault had only come to an end when the victim’s colleague turned up to relieve her.[48]
[46] R1, G6, page 52.
[47] R1, G6, page 51.
[48] R1, G6, page 54,
The sentencing Judge considered evidence from a Pre-sentence Report[49] and a Psychological Assessment Report.[50] His Honour noted that the Psychological Assessment Report found that the Applicant did not suffer from any clinical disorder or personality disfunction and that the Court was ‘not persuaded that there [were] any relevant mental health issues in this case justifying a finding of reduced moral culpability’.[51] His Honour noted reports of ‘a somewhat permissive view about violence and violence towards women in his cultural background’ but found that this permissive attitude ‘explains but does not excuse his offending behaviour’.[52]
[49] R2, pages 32-35.
[50] R2, pages 72-80.
[51] R1, G6, page 52.
[52] R1, G6, Page 53.
In the Tribunal’s view the circumstances of the offences, as found by the Court, were clearly very serious. As Bathurst CJ noted on the appeal ‘[t]he victim was unconscious and defenceless and the pouring of chemicals down her throat without regard to the consequences could only be described as a callous and vicious act’.[53] The Tribunal considers that this is both a fair and accurate assessment of the Applicant’s offence, highlighting the reasons why it must be regarded as very serious offending. The Court was satisfied that the Applicant ‘broke into the premises intending to do some harm to the victim or to be violent towards her if she did not change her mind about their relationship.’[54] As noted above, this finding was somewhat challenged by the Applicant’s evidence and submissions where it was suggested that the Applicant had not gone to the victim’s workplace intending to harm her. Even accepting that was the case, the sentencing Judge was satisfied he had that intent from the time he broke in. The Tribunal accepts that finding.
[53] R1, G7, page 73.
[54] R1, G6, page 49.
The sentencing Judge was not persuaded that the Applicant was remorseful and noted instances of minimisation by the Applicant of his criminal behaviour.[55]
[55] R1, G6, page 53.
The Applicant was sentenced to 10 years imprisonment with a non-parole period of five years. This sentence was upheld by the Supreme Court of New South Wales Court of Criminal Appeal on appeal on 2 September 2016.[56] In the Tribunal’s view this is a significant sentence reflecting the objective seriousness of offences,[57] particularly having regard to the principle that a custodial sentence is a sentence of last resort as noted by the sentencing Judge.[58] As noted by Bathurst CJ on the appeal, ‘[w]hilst a head sentence of 10 years may be seen to be severe, it is not, in my view, manifestly excessive’. The Chief Justice also noted the importance of personal and general deterrence in domestic violence cases. Those comments are considered further below under the Family Violence consideration. The Tribunal notes that parole was set at 50% of the Applicant’s sentence and he was paroled (into immigration detention) after serving five years.
[56] R1, G7.
[57] Direction 90 para 8.1.1(1)(c).
[58] R1, G6, page 54: Respondent’s SFIC at para [26].
The Applicant’s national police certificate also records a conviction for ‘Drive on road etc while licence suspended’ for which the Applicant received a 12 month bond and fine. The Australian Criminal Intelligence Commission’s Check Results Report also records an offence of ‘Never licensed person drive vehicle on road – 1^st offence’ which was dismissed pursuant to s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). The Tribunal notes the Applicant was a juvenile at the time of that offence. The Applicant indicated in oral evidence that he could not recall the details of these offences but he thought one related to him driving on his ‘Learners’ licence without a licenced driver supervising. He said that he thought he could drive and was showing off to his friends. He could not recall the other incident but accepted he was driving without a licence. He thought he may have lost his licence as a result of fines.[59] While the Tribunal considers these offences demonstrated a disregard for the laws of Australia with respect to driving, the Tribunal does not consider they add to the overall assessment of the Applicant’s offending as very serious particularly, given the Applicant’s young age at the time those offences were committed.
[59] Transcript, p 81-83; R2, page 17.
The Respondent submitted that as these offences preceded the break and enter and assault offences, they indicated an increase in the seriousness of the Applicant’s offending.[60] However, while the later offences were no doubt significantly more serious, given they were of a quite different nature and involved a violent assault against an intimate partner, the Tribunal does not regard them as an indication of a progression of offending in the spectrum of seriousness. Rather, the later offending was very serious notwithstanding the Applicant had no prior history of offences of that type or seriousness. There was also no evidence which would suggest the cumulative effect of repeated offending was a relevant consideration in the Applicant’s circumstances.[61] In this regard the lack of increasing seriousness, frequent offending or repeated offending, does not lessen the overall assessment of his offending as being very serious.
[60] Direction 90, para 8.1.1(1)(d).
[61] Direction no 90, 8.1.1(1)(e)
In this regard, the Respondent also drew the Tribunal’s attention to references in the reports to admissions by the Applicant that there had been previous instances of physical violence by the Applicant toward the victim (or between them) during the relationship. In questioning, the Applicant recalled one occasion where he had grabbed the victim, shook her and pushed her on the bed.[62] There were no records that indicated these instances had been reported to Police or that the victim suffered any injuries as a result of them. The sentencing Judge noted there were admissions of violence within the relationship but that ‘there [was] no evidence about the nature of the prior domestic violence’. The Court accepted it as an admission against interest and that ‘it deprives him of the claim that the offences are an isolated aberration’.[63]
[62] Transcript, page 61.
[63] R1, G6, page 48.
The Respondent invited the Tribunal to find that these reported instances were domestic violence offences. The Tribunal accepts this submission in part. The admissions were taken into account in the sentencing context against the Applicant as they indicated the incident was not an aberration. In Tribunal’s view, that does add to the seriousness with which the Applicant’s conduct is to be regarded. However, there was very little evidence about the nature of the incidents other than the admissions by the Applicant in various contexts, and in the Tribunal’s view they do not add significantly to the overall assessment of the offending as very serious, though they do reinforce potential issues relating to rehabilitation and risk (below) and for the primary consideration of Family Violence. In that regard those instances of prior violence and other conduct within the relationship are considered further below.
The Respondent also drew the Tribunal’s attention to several reported incidents in prison including that the Applicant was found to have a ‘contraband’ USB in his room. The Applicant explained that this contained his legal documents and he was not aware he was not allowed to have it. He lost some privileges as a result. Other instances were for similar infractions and appeared to be in the early part of his prison term. The Tribunal does not consider these instances were serious or that they add to the overall assessment of the seriousness of the Applicant’s offending.
The Tribunal considers that additional matters in para 8.1.1(1)(f) and (g) of Direction 90 do not arise on the information before the Tribunal and are not relevant to the Tribunal’s consideration of the nature and seriousness of his conduct.
As noted above, the Applicant submitted that the Tribunal should have regard to positive aspects of the Applicant’s conduct prior to the offending and since being in prison and detention. The Tribunal has had regard to the Applicant’s lack of serious antecedents and his generally good conduct in prison. The Tribunal has also had regard to reports of his conduct in detention as a cooperate, polite and rule abiding detainee. These matters are to the Applicant’s credit. However, given the very serious nature of his offences, they do not, in the Tribunal’s view, detract from an assessment that his criminal offending and other conduct is extremely serious. This is particularly so where this part of the Direction focusses on criminal and other conduct from which the Australian public may need protecting. The Tribunal considers that in the Applicant’s circumstances this conduct is more relevant to an assessment of the Applicant’s risk of reoffending and has given these submissions further consideration below.

The Applicant’s offending is marked by several very serious offences which occurred in one incident. He has other less serious offences including traffic offences and prison infringements. Taking the Applicant’s criminal offending and other conduct as a whole and having regard in particular to the very serious nature of the offences for which he received significant prison sentences, the Tribunal considers the nature and seriousness of Applicant’s criminal and other conduct to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In assessing the risk that the Applicant poses to the Australian community, I am required to assess the nature of the harm that would be caused should the Applicant engage in further criminal or other serious conduct.[64] This consideration also requires an assessment of the likelihood of reoffending.[65] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[66]
[64] Direction 90 para 8.1.2(2)(a).
[65] Direction 90 para 8.1.2(2)(b); Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124 [42]–[43]. See also Senior Member Dr Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
[66] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of reoffending as requiring a ‘rational and probative basis’.
In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 90 requires the Tribunal to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It directs 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.[67]
[67] See also Direction No 90 para 8.1(2)(b).
Paragraph 8.1.2(2) of Direction No 90 relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the noncitizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…
In cases where consideration is being given to whether to refuse to grant a visa, the Tribunal is also directed to consider whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for and whether there are strong or compassionate reasons for granting a short stay visa.[68]
[68] Direction No 90, para 8.1.2.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[69]
[69] Direction No 90 para 8.1.2(2)(a).
The most serious of the Applicant’s offending involved violent offending against an intimate partner. It involved break and enter in circumstances of aggravation and assault occasioning bodily harm. As noted above, both the sentencing Judge and the Court of Appeal commented on the serious, even life-threatening, consequences which could have eventuated from the Applicant’s offending on that occasion.
The Applicant did not make specific submissions with respect to the nature of harm, should the Applicant reoffend. The Applicant contends he will not reoffend.
The Respondent submitted that in the Applicant’s circumstances the risk of harm was so serious that any risk of reoffending was unacceptable.[70]
[70] Direction 90 para 8.1.2(1)
With respect to the harm caused by domestic violence, the Respondent referred the Tribunal’s attention to a report that stated ‘every day, 12 women are hospitalised due to domestic and family violence’,[71] and to the fact that violence against women and children resulted in an overall economic cost of $26 billion in 2015-2016, with victims bearing approximately 50 per cent of that cost.[72] The Applicant did not challenge these submissions and the Tribunal accepts that domestic violence causes serious harm to individuals and the Australian community.
[71] Fourth Action Plan – National Action Plan to Reduce Violence against Women and their Children 2010-2022 at R1, G18, page 192; Respondent’s SFIC at [29].
[72] Respondent’s SFIC at para [30].
If the Applicant were to engage in further violent assaults, including against a domestic partner, this would cause harm including physical and mental injury to the victim. It would also include the distress caused to those who witness such offending or its aftermath. As noted in submissions from the Respondent, having regard to the domestic violence nature of the offences, repeated offending of this kind could cause harm to family members of the victim including children, whether or not those persons witness the assaults. The Respondent submitted, and the Tribunal accepts, that violent offending of this type also has broader financial and other consequences to the justice and health care systems.[73]
[73] Respondent’s SFIC at paras [29]-[30].
Having regard to the nature and circumstances of the offences the Applicant was convicted for, the harm to individuals or the Australian community should the Applicant reoffend would be very serious.
While the Tribunal did not regard the Applicant’s driving offences as increasing the seriousness of his overall offending, such offending can cause harm. Should the Applicant commit further offences of driving without a licence, there is a risk that members of the public would suffer serious harm as a result, including by being harmed by being injured by an unlicenced driver.
Overall, the harm which may be caused to individuals and the Australian community if the Applicant were to reoffend is very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[74]
[74] Direction No 90 para 8.1.2(2)(b).
The Applicant contended that he poses no risk to the Australian community having regard to:
·His remorse and the steps he has taken to apologise to the victim.
·The fact he has undertaken rehabilitation courses where available to him, has sought out and undertaken counselling for PTSD and depression.
·The efforts the Applicant has made to better himself through further education and courses in prison and detention.
·The Applicant’s conduct in prison and detention including assisting with communication between detainees and detention management while at Villawood Immigration Detention Centre and positive reports of his conduct in prison and detention more generally.
·His strong family and social supports on release, including his involvement in the Hillsong and Living World churches.
·His determination to make a positive contribution to society through sharing his experiences with young people in his community.
·His understanding of the expectations and requirements of the legal and social systems in Australia following his conviction.
·The benefit of increased maturity, control and self-awareness that comes with age.
·His desire to maintain and develop his relationship with his new partner and her daughter and to start a family of his own.
·His plan for ongoing counselling in the community including relationship counselling with his partner.
·The assessment of the delegate that he is not a danger to the Australian community.
The Respondent submitted that there remains an ongoing and unacceptable risk of reoffending, due to the following reasons:[75]
·the pre-release parole report assessment that the Applicant’s risk of general recidivism as being at a low to medium level.[76]
·the Applicant’s unmet domestic violence offending needs noting that the Applicant has not attended any rehabilitation programs which address domestic violence as recommended in the pre-release report, further noting that the recommended Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Domestic Abuse program was not available to him whilst in custody due to his risk rating score.
·While his release on parole was supported in the pre-release report this was based on various conditions being imposed including weekly monitoring and supervision and his parole was ultimately on the condition that he must submit to supervision by Community Corrections.
·The Applicant has demonstrated little remorse for his offending. He was dishonest when he was interviewed by the police claiming he did not go into the premises and tried to cast himself in a better light when he claimed he administered CPR. He minimised his criminality when speaking to his probation officer and continued to deny elements of the offending including wearing gloves. He also failed to acknowledge the allegation of indecent assault when speaking to the forensic psychologist. The Court did not accept the Applicant was genuinely remorseful.
·That the Applicant has written a letter apologising to the victim of his offences should be given little weight since it was written in 2021, almost 10 years after the offending occurred and in breach of probation orders. His motivation behind sending such a letter to his victim should be questioned in circumstances where the pre-release report noted that his ‘level of victim empathy appears superficial at this time’.[77] Further, the letter from the Applicant attributes the offences to both of them being ‘young, immature and ignorant to the law’ and seeking, at least in part, to blame her for his own wrongdoing.[78]
·The Court was not persuaded the Applicant’s childhood trauma explained his offending and referred to the permissive view about violence and violence against women in this cultural background.
·The Applicant did not suffer from any clinical disorder or personality dysfunction. The Court was not persuaded there were any mental health issues to justify a finding of reduced moral culpability.
·The Applicant was unable to comply with lawful directions in prison and this does not bode well for his rehabilitation prospects.
[75] Respondent’s SFIC at para [31].
[76] R1, G20.
[77] R1, G20.
[78] R1, G45.
As noted above, the District Court of New South Wales expressed the view that the Applicant’s offending was ‘well above the middle of the range’ and towards the ‘upper end of the range’ of offending of those types. The District Court was also not persuaded that the Applicant was remorseful. However while expressing some concerns about the absence of remorse and reservations about the support which would be offered by the community given a demonstrated ‘lack of appreciation of the gravity of these offences’, the sentencing Judge was satisfied in all the circumstances that the Applicant’s ‘prospects of rehabilitation and not reoffending are good’.[79] In this regard, the sentencing Judge looked favourably on the Applicant’s lack of prior convictions and ‘work and study ethic both before and after the offence’.[80]
[79] R1, G6, page 54.
[80] R1, G6, page 53.
Although the Applicant has been in prison or detention since the time the sentencing Judge’s assessment was made, in the Tribunal’s view, the factors which lead to the assessment of the Applicant’s prospects of rehabilitation being ‘good’ remain. The Applicant has demonstrated a continued commitment to work and study, he has demonstrated good behaviour and a positive engagement with the prison and detention communities in which he has lived and he has not offended. He continues to attest to having gained an understanding of Australian’s laws and a commitment to accepting them. Accepting that his commitment to not reoffending is untested in the community, the Tribunal nonetheless places weight on the Court’s assessment of the Applicant’s prospects for rehabilitation and not reoffending.
A number of reports in evidence before the Tribunal assessed or commented on the Applicant’s risk of reoffending.[81] In the Tribunal’s assessment, these were generally consistent with his Honour’s views regarding the prospects of rehabilitation with the risk of reoffending being assessed to be from low to moderate.
[81] R2, pages 25-31; R2, pages 32-35.
The earlier assessments were the pre-sentence report prepared on 5 May 2015,[82] and the psychological assessment report prepared on 19 May 2015.[83] Both reports were prepared as part of the sentencing process in the District Court.
[82] R2, pages 32-35 (prepared by E Kirkwood).
[83] R2, pages 72-80 (prepared by L Durkin).
The pre-sentence report notes the Applicant appeared to ‘minimise and deny a large part of the offences’.[84] It identified the Applicant’s risk of reoffending according to the Level of Service Inventory – Revised as ‘medium’ with his criminogenic needs as ‘emotional/personal’ and ‘attitude/orientation’. The report assessment noted: [85]
The offender’s relationship with the victim was reported to be fraught with conflict and characterised by regular disagreements, followed by periods of reconciliation. By his own admission, the violence perpetrated toward the victim was not an isolated incident, however was significantly escalated on this occasion. It is of concern that the offender’s account of events differs greatly from the agreed facts and it is particularly concerning that that [the Applicant] claims to have no recollection of the office after choking the victim’
[84] R2, page 34.
[85] R2, page 35.
The psychological assessment report noted that:[86]
According to [the Applicant], he emotionally invested a lot of himself into his relationship with the victim. She was reportedly the first person he had ever been able to connect with in any significant and meaningful way and he apparently received a level of support and security that he had never before been afforded. As such, this relationship took on special significance for [the Applicant] and he appears to have been highly motivated to maintain it. Regrettably, when this was not possible, [the Applicant’s] functioning declined. [The Applicant] reported striving to avoid failure and to maintain security, which appears to have also included the avoidance of rejection, and he was unsuccessful in doing this in his relationship. As a consequence, he reports responding with negative emotion, namely anger. [The Applicant] reported directing this anger towards himself following one separation from his partner and he attempted suicide. However, in the case of the current offence, [the Applicant] directed this anger towards his partner and responded with considerable aggression in an attempt to quell his sense of inadequacy and failure and seemingly to avoid the abandonment and rejection. His response was a gross over-reaction and an inappropriate strategy for resolving the situation with his partner. However, while [the Applicant’s] exposure to violence, the instability in his relationship and history of suicide attempts, contribute to [the Applicant’s] risk in this case, there are also a number of protective factors in this case. Indeed, [the Applicant] does not report a notable history of physical aggression, his criminal history is limited and unrelated to violence, despite the adversity he has experienced he does not suffer clinical disorder or, seemingly personality dysfunction, he does not deny his offending and he seems motivated to address those factors that have elevated his risk. Thus, while there are notable areas for improvement that will need to be addressed in treatment, there are a number of positive prognostic signs also.
The report went on to ‘strongly recommend’ the Applicant engage in a specific domestic violence related program that ‘supports him to fully understand the nature of his actions, the triggers to his reactions and the underlying factors that have contributed to his current situation’. [87] The report indicated it was planned, and advisable, that he live with his mother post-release.
[86] R2, page 79.
[87] R2, page 79.
The Tribunal notes there are also three documents which appear to be recorded risk assessments. One is a summary document recording ‘LSI-R Results’ indicting a test date of 4 May 2015 and recording a rating of ‘Medium to low’.[88] The document appears to have been generated by ‘TRUDGEM’ on 4 February 2016. Another document prepared by psychologist M Trudgett and senior psychologist S Rawson includes textual results of ‘Violence Risk Scale – Screening Version: Item Evidence Recording Sheet’. The report records interviews were undertaken in May and June 2016. The report does not include an overall risk rating but included notes or observations against criteria. Relevantly, the report notes as follows:
·‘The Individual largely manages to live in the community without resorting to violence. No evidence of involvement in violent organised crime, violent gang activities, or using violence to support himself. Publicly it would appear that he is quite prosocial however he engaged in violent acts in his intimate relationship’.
·‘Evidence of appropriate victim empathy, became teary in discussing impact of the index offence’.
·The Applicant has completed a course on relationships.
·The Applicant has been involved in prior incidents of violence in the relationship.
·The police facts indicated the Applicant had pressured the victim to withdraw charges after he entered custody.
·‘[The Applicant] appears to use interpersonal aggression habitually in his relationship’.
·‘Overall, during institutionalisation there is no evidence of violence, threatening and/or intimidating behaviours directed at staff or other individuals’.
·The Applicant does not suffer from any clinical disorder or personality dysfunction.
[88] R2, page 60.
Several of the reports included references to the Applicant using marijuana and trying other drugs.[89] At the hearing he admitted to having used marijuana, though he appeared to minimise his use saying he smoked ‘one joint’ ever two weeks, compared to earlier reports recording more consistent use. In any event, there was no evidence the Applicant had used illicit substances in prison or detention, which is now a period of around 10 years. As noted in the sentencing Judge’s comments, the report notes the Applicant’s responses indicated ‘somewhat permissive views about violence and violence towards women’.[90] The report records that ‘while he did not believe that a lack of understanding was a justification or excuse for his conduct, he acknowledged that his lack of awareness influenced his actions’. The report noted that while the Applicant did not meet the criteria for diagnosis, there was ‘evidence of psychological instability’. In the recommendations section, the report strongly recommended that the Applicant ‘engage in a specific domestic violence related program that supports him to fully understand the nature of his actions, the triggers to his reactions and the underlying factors that have contributed to his current situation’.[91] The report also recommended the Applicant be monitored and supported in the community to manage stressors.
[89] R2, page 78;
[90] R2, page 77.
[91] R2, page 79.

Paragraph 9.1(2) refers to ss 197C and 198 of the Migration Act. These provisions concern the removal of unlawful non-citizens from Australia. The effect of these provisions was recently clarified by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). The effect of the amendments to s 197C of the Migration Act is that a non-citizen cannot be removed to a country under s 198 of the Migration Act if a protection finding has been made in relation to that person and country unless the protection finding decision has been quashed or set aside; the Minister is satisfied that the person is no longer owed protection obligations; or the non-citizen requests voluntary removal.
As noted earlier, on 13 November 2019, a Member in the Migration and Refugee Division of this Tribunal remitted the application for a protection visa to the Minister for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.[185] The Tribunal found that the Applicant was a member of a particular social group of ‘persons suffering from mental illness in Sierra Leone’ and that the he faces a real chance of serious harm amounting to persecution on return to Sierra Leone.
[185] R1, G12.
On remittal to the Department, the delegate found that s 36(1C) did not exclude the Applicant from the grant of a protection visa by operations of s 36(1C). The protection visa application was then refused under s 501(1).
The Applicant submits that the Applicant has been found to be owed protection obligations. As he cannot be removed and would be barred from any other visa, he faces an indefinite period of detention. The Applicant submitted that the Tribunal should place no weight on any discretionary management options open to the Minister with respect to the Applicant’s future detention.[186]
[186] Applicant’s SFIC at [38] – [39].
The Respondent accepts that a protection finding has been made with respect to the Applicant and that he has engaged Australia’s non-refoulment obligations.[187] The Respondent submitted that should the Tribunal decide to refuse the visa, the combined effect of ss 501E and s48A will be to prevent the Applicant from making any further substantive visa applications while he is in the migration zone.[188]
[187] Respondent’s SFIC at [58] and [60].
[188] Respondent’s SFIC at [58].
The Minister submitted that the Applicant would not be liable for removal due to the protection finding made with respect to him and by virtue of the operation of s 197C(3)(b).
The Applicant cannot be refouled to Sierra Leone because of the operation of s 197C of the Migration Act. He would therefore face the prospect of indefinite detention, or detention with no fixed chronological end-point. The Tribunal gives further consideration to the legal consequences of a decision to refuse the visa as a separate other consideration.[189]
[189] VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
The Respondent submitted that it would be open to the Minister to consider other options, including removal to a third country, exercising personal discretion under s 195A of the Migration Act to grant another visa or to exercise personal discretion to make a residence determination under s 197AB of the Migration Act.[190] However, there was no information before the Tribunal that any of those options were currently being considered by the Minister and the Applicant submitted that no weight should be placed on the non-compellable powers available to the Minister. The Tribunal notes the Applicant has been detained for almost 5 years.
[190] see para 9.1(3) of Direction No 90
With respect to para 9.1(2) of Direction No 90, the Tribunal has considered the Applicant’s criminal offending which should be viewed as very serious. The nature and seriousness of the Applicant’s conduct weighs strongly in favour of refusing the visa. However, Australia owes non-refoulement obligations to the Applicant and a protection finding has been made. These are obligations which Australia takes seriously because the Applicant faces a real chance of serious harm if returned to Sierra Leone. However, that obligation should be viewed in the context that the Applicant will not be refouled to Sierra Leone whilst the protection findings regarding the Applicant for that country remain on foot.
Australia has been found to owe non-refoulement obligations with respect to the Applicant and he has been found not to be excluded from the grant of a protection visa by operation of s 36(1C). Given the existence of that obligation but noting that it will be met by not returning the Applicant to Sierra Leone by operation of s 197(C)(3), the Tribunal considers the consideration weighs slightly in favour of not exercising the discretion to refuse the visa.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c) of Direction 90, the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards available to other citizens of Sierra Leone.
The Applicant contended that this consideration weighed substantially in his favour having regard to: [191]
·The fact he came with his family on a humanitarian visa as a teenager and has since been assessed to be owed protection;
·His mother, siblings and other family members all live in Australia; and
·He has no connection with Sierra Leone.
[191] Applicant’s SFIC at [40]-[41].
The Respondent contends that as there is no prospect of the Applicant being removed to Sierra Leone in circumstances where he is owed non-refoulment obligations. As such the Respondent contends this consideration should weigh neutrally.
The Tribunal accepts that there is no prospect of the Applicant being returned to Sierra Leone in the foreseeable future while the protection finding is in place. As such, consideration of the challenges that the Applicant would be likely to face on return to Sierra Leone cannot be said to amount to impediments at this time.
However, in the Tribunals view there is a possibility that the Applicant could be returned to Sierra Leone at some point were the protection finding to be revisited.[192] In such circumstances, the Applicant might be removed to Sierra Leone and required to establish and maintain basic living standards.
[192] Section 197D.
The Applicant contents that he would face significant impediments establishing himself in Sierra Leone. He contends he has no family in that country and is not familiar with its culture and practices having left as a young child. The Tribunal accepts that this is the case. He claims his mental health issues would be worsened on return to Sierra Leone. In this regard, the Tribunal notes Dr Nathani’s assessment as to the Applicant’s suicide risk on return and the exacerbation of his PTSD which would be triggered by returning to the country where he witnessed his father’s murder.[193]
[193] A17, page 14.
The Tribunal accepts there are significant impediments to his return to Sierra Leone and in establishing and maintaining basic living standards even to the standard generally available to citizens of that country which the Tribunal acknowledges would be below the standards to which Australia is accustomed.
While this factor weighs against the exercise of the discretion not to grant the visa, given the very low likelihood of the Applicant being returned to Sierra Leone, the Tribunal affords only this consideration slight weight against exercising the discretion to refuse the visa application in the Applicant’s circumstances.
Impact on victims
Paragraph 9.3 of Direction No 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
While the response from the victim to the Applicant’s letter of apology was before the Tribunal, that response did not address the effect of a decision on this visa application on her.[194] That issue was not raised in the Applicant’s apology letter.
[194] R1, G46.
Though the Applicant contended that his remorse and reflection is relevant to this consideration, the Tribunal considers that the Applicant’s statements of remorse do not enable the Tribunal to make an assessment of the impact of the decision under s 501 on the victim of his offending or on the Australian community.
As there is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant’s visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant in the Applicant’s circumstances and the Tribunal affords it no weight.
Links to the Australian community
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of the refusal of the Applicant’s protection visa on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction No 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's 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.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia when he was around 16 years of age. He is now 29. He committed his most serious offences at 19 years of age and has been in prison or detention for almost 10 years.
The Applicant’s first offence was his driving offence as a juvenile, when he was 17 years old and had been in the Australian community for more than one and a half years. This diminishes the weight to be given to the Applicant’s time in the Australian community and the fact that he came here as a teenager.
The Applicant submits he has strong ties to the community and has made a contribution both before he was imprisoned and while he has been in detention. His immediate family and most of his extended family are in Australia and are citizens of permanent residents.
The Respondent contended that although the Applicant has lived in Australia for 13 years, less weight should be given to the time he has spent here given he offended shortly after arriving and has spent 8 years in prison or detention. The Respondent acknowledged the Applicant has made some contributions through work and had family in Australia. However, the Respondent submitted that while this consideration weighs in the Applicant’s favour it does not outweigh the primary considerations weighing strongly in favour of refusal.[195]
[195] Respondent’s SFIC at [69] to [72].
There was evidence, however, that prior to his offending the Applicant had applied himself making a positive contribution to the community including through study and completing his High School Certificate and working with his church’s youth leadership group.[196] The ties formed through that work remain with the church continuing to support the Applicant’s release into the community and plan for his further involvement with church activities.[197] There was evidence he is supported by the African community in New South Wales and that prior to his incarceration he assisted in organising community events including football.[198] He also contributed through working as a disability support worjker and operating a cleaning businesses.
[196] A6, A15.
[197] A6, A7.
[198] A12.
The Applicant also has strong ties to Australia because all his immediate family members reside here. He has a large extended family which he contended was close and supportive. He is the oldest child in a single parent family and prior to his arrest, he supported his mother in the care and raising of his two younger siblings, both of whom are still studying.[199]
[199] A2, A4, A5, A9.
The family members are clearly supportive of his remaining in Australia. There was evidence from multiple family members about the toll his removal or indefinite detention would have on the family. [200] There was evidence that his mother has suffered emotionally and financially while he has been detained and would continue to be impacted if he is refused a visa.
[200] See for example A4, A5, A10, A11,
There was also evidence that the Applicant has endeavoured to contribute to the community while in detention through his involvement in the Hillsong community,[201] his participation in detention centre and detainee consultation groups[202] and furthering his studies in prison and detention.[203] Pastor AW, from Hillsong Citycare, noted that the Applicant:[204]
has been an integral part of our core leadership group which inspires detainees and encourages general wellbeing through developing spiritual fortitude.
[201] A7.
[202] Transcript, page 25.
[203] See for example the records at R1, G28.
[204] A7.
This demonstrates ongoing ties to the community inside and outside of detention. It also demonstrates a capacity to make community connections even in a detention which is to the Applicants credit.
The Tribunal finds the strength, nature and duration of the Applicant’s ties to Australia weigh against exercising the discretion to refuse the visa. Having regard to the short period he spent in the community before being imprisoned, less weight is afforded to this consideration.
Impact on Australian business interests
Paragraph 9.4.2 of Direction No 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests. The Tribunal considers this consideration is not relevant to the Applicant’s circumstances.
Conclusion on links to the Australian community
The Tribunal has found that the strength, nature and duration of the Applicant’s ties to Australia weigh against exercising the discretion to refuse the visa.
The impact on Australian business interests was not relevant in the Applicant’s circumstances.
Given the relatively short time the Applicant was in the community before offending, but also having regard to his efforts to contribute positively to the community both before and during his detention, and his strong family ties to Australia, the Tribunal finds this consideration weighs moderately against exercising the discretion to refuse the visa.
Legal consequences of the decision and the prospect of indefinite detention
As noted in the Respondent’s submissions, the Tribunal is required to consider and engage with the immediate legal consequences of its decision.[205]
[205] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
As noted under the consideration of Australia’s non refoulement obligations, if the Tribunal affirms the decision to exercise the discretion to refuse the Applicant a protection visa, he cannot be returned to Sierra Leone because of the operation of s 197C of the Migration Act. While he remains in Australia without a visa, the Applicant would continue to be liable to be detained under s 189 of the Migration Act.
Accordingly, a consequence of affirming the decision to refuse the Applicant a protection visa would be that he would be liable to remain in immigration detention until one of the following occurs:
·The Minister exercises his non compellable powers under ss 195A or 197AB of the Migration Act (to grant the Applicant a visa or make a residence determination with respect to the Applicant);
·The Applicant is resettled in a safe third country; or
·One of the circumstances referred to in s 197C(3)(c) applies to the Applicant. Those circumstances are:
oThe decision in which the protection finding was made is quashed;
oThe Minister decides that a protection finding would no longer be made with respect to the Applicant; or
oThe Applicant requests voluntary removal to Sierra Leone.
As noted earlier, there was no information before the Tribunal that those options were being considered by the Minister. In any event, the Applicant would remain detained unless and until one of those events occurs.
The Respondent accepted that the Applicant’s continued detention for an ‘unknown period’ weighs against refusal of the visa. However, the Respondent also contended that this consideration was outweighed by the primary considerations in favour of refusing the visa in light of the serious nature of the Applicant’s offending.[206]
[206] Respondent’s SFIC, at [64].
The Applicant submitted that ongoing detention of the Applicant would be seriously detrimental to his mental health issues and that no weight should be given to any option which involved the Minister intervening in the Applicant’s favour in circumstances where he had refused the Applicant a visa on character grounds.[207]
[207] Applicant’s SFIC at [39] citing BAL19 v Minister for Home Affairs [2019] FCA 2189 at [42].
The Tribunal considers there is logic to the Applicant’s submission that it is unlikely the Minister would issue a visa to the Applicant having recently refused the visa on character grounds. Further the Full Federal Court observed in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124] that a residence determination seems unlikely when an applicant’s visa has been cancelled (or by analogy refused) in circumstances where they have been deemed a risk to the community:
… it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community …

The Applicant has been in detention for almost five years. Most recently he has been detained in a state where he is isolated from his family members and no longer receives personal visits. As noted earlier in this decision, the Applicant has been diagnosed with complex PTSD, anxiety and depression.[208] Dr Nathani most recently assessed he met diagnostic criteria for PTSD but his depressive symptoms did not meet criteria for diagnosis of a Major Depressive Disorder. He noted this may be due to the fact the Applicant is receiving medication to treat depression.[209] He has previously attempted suicide. Mental health reports prepared during the course of treatment in detention record the deterioration of his mental health in detention.[210]
[208] R1, G51: A17
[209] A17, page 11.
[210] See R1, G24 to G27.
The most recent mental health report prepared by Dr Nathani, and the only report prepared by a clinical psychiatrist, assesses that ongoing detention carries a high range risk for the Applicant developing a ‘Major Depressive Disorder’ along with a ‘moderate risk of suicide’.[211] Dr Nathani notes:[212]
[the Applicant] will probably develop a low mood with a strong sense of hopelessness and worthlessness, experience anorexia and weight loss and lose pleasure in things (anhedonia). When in a similar mental state previously, [the Applicant] attempted suicide and will be at risk of suicide were he to be detained in Australia indefinitely. The risk of perpetuating the symptoms of PTSD through indefinite detention is in the high range because the environment is, in itself, re-traumatising.
[211] A17, page 14.
[212] A17, page 14.
While the Respondent submitted that little weight should be given to the report, given discrepancies in the reported information to Dr Nathani from the Applicant regarding his relationship and offence history which it was contended undermined the findings of the report, the Tribunal did not accept Dr Nathani was unqualified to express the views reported in the report or to draw an inference that he would have made different conclusions on different facts when those inferences were not put to him. In any event, those criticisms do not, in the Tribunal’s view, go to Dr Nathani’s conclusions regarding the impact of ongoing detention on the Applicant’s mental health.
Dr Nathani’s observations were consistent with statements made by the Applicant regarding his despair at being unable to continue with his life while in detention which the Tribunal assessed to be genuine. The Applicant has spent almost four years in detention. He spent ten years in a refugee camp in Guinea. He testified that this meant he had only spent about nine years of his life living freely in the community, six years in Sierra Leone and three in Australia.
The Tribunal considers based on the medical reports before it, including the assessment from Dr Nathani, that the prospect of indefinite detention will have a devastating impact on the mental health of the Applicant who would see himself as a young man with no future. Having accepted that the Applicant cannot return to Sierra Leone due to his mental health conditions, the system designed to protect him from that harm would in itself be worsening those conditions.
The Tribunal finds that this consideration weighs very heavily in favour of not refusing the visa.
Conclusion
The Tribunal considers that the Applicant does not pass the character test as defined in
s 501(6)(a) for the reasons set out earlier [at 40 and 41]. This enlivens the discretion under s 501(1) of the Migration Act to refuse the Applicant’s protection visa application, taking into account the primary and other considerations set out in Direction No 90 when exercising the discretion.
Direction No 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above).
In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his family members in Australia. The Tribunal has considered all the relevant considerations and weighed them according to the guidance provided by Direction No 90 to determine whether the discretion to refuse the visa should be exercised.
The Tribunal has found that the three ‘primary considerations’ of protection of the Australian community, family violence and expectations of the Australian Community, weigh in favour of refusing the Applicant’s visa application under s 501(1) of the Migration Act. In this regard, the Tribunal concluded that the protection of the Australian community consideration weighed moderately in favour of refusing the visa, balancing the low risk of reoffending against the very serious nature of the offences for which the Applicant was convicted. Given the nature and circumstances of the offences, as serious offences of family violence, the Tribunal has found the consideration of family violence weighs heavily in favour of refusing the visa application. The Tribunal has also found the expectation of the Australian community would be that the Applicant would not be granted a visa and this consideration weighs heavily in favour of exercising the discretion to refuse the visa application.
One primary consideration weighs against exercising the discretion to refuse the visa, that is the best interests of minor children. The Tribunal concluded that the best interests of the minor children affected by the decision, Ms N and the Applicant’s nephews and cousins, weigh moderately against refusing the Applicant’s visa application.
The Tribunal has had regard to the relevant other considerations listed in Direction No 90, including non-refoulement obligations, the impediments to the Applicant’s removal and the Applicant’s links to the Australian community.
The remaining ‘other considerations’ neither weigh for nor against refusing the Applicant’s visa application or are not relevant to the Applicant’s circumstances.
As the Applicant is the subject of a ‘protection finding’ and is not liable for removal to Sierra Leone, the considerations regarding non-refoulement obligations and impediments to removal to that country weigh less heavily than may otherwise be the case. In recognising these considerations are relevant in the Applicant’s circumstances, but unlikely to eventuate given the legal consequences of the ‘protection finding’, the Tribunal has found each weighs slightly in favour of not exercising the discretion to refuse the protection visa application.
With regard to his links to the community, the Tribunal found that the Applicant has close ties to Australia, principally through his family members here, including his partner, and his consistent and ongoing involvement in church community activities. Further, though the Applicant was only in the Australian community for a short time prior to imprisonment, he has made some positive contributions to the Australian community through employment and involvement in his church leadership group. He has endeavoured to continue to contribute while in detention. The Tribunal did not consider the impact on Australian business interests to be relevant in the Applicant’s circumstances. Overall, the Tribunal found that the Applicant’s ties to Australia weigh moderately against exercising the discretion to refuse the visa application.
The Tribunal has also considered an additional ‘other consideration’ being the legal consequences of the decision and the prospect of indefinite detention. The Applicant faces the prospect of indefinite detention which expert opinion advises will be significantly detrimental to his mental health. The Tribunal has found that this other consideration weighs very heavily in favour of not exercising the discretion to refuse the protection visa application.
Cases such as the Applicant’s present a difficult challenge. There can be no doubt that his offending was very serious. The circumstances of the offending speak for themselves. Any repetition of such offending would cause serious harm to individuals and to the Australian community. However, the Applicant has endeavoured to make use of the significant time he has spent in detention and prison to address the causes of his offending and to position to prepare himself to make a positive contribution to the community on release. This process is not complete and, particularly with respect to specific intervention to address attitudes which lead to serious family violence, there is, in the opinion of experts and in the Tribunal’s assessment, more work to be done by the Applicant to ensure he can lead a prosocial and productive life which respects those around him.
Against these considerations, the Applicant has been assessed to be owed protection on account of mental health issues. As a result, he will not be returned to Sierra Leone in the foreseeable future and while he does not hold a visa he will remain in detention. Expert medical evidence advises that this will worsen his mental health issues including causing an increase in this risk of suicide. In the Tribunal’s assessment, given the Applicant’s relatively young age and the non-refoulement obligations owed with respect to him, these are considerations which must be weighed very seriously.
In weighing these considerations against one another, the Tribunal finds that although there are strong reasons for refusing the visa, the countervailing considerations which favour not refusing the visa, in particularly the impact of the legal consequences of the decision on the Applicant, outweigh those considerations in the Applicant’s case.
The Tribunal is of the opinion that the correct or preferable decision is to set aside the decision of the delegate refusing the Applicant’s visa application and substitute that with a decision not to refuse the protection visa application under s 501(1) of the Migration Act.
Decision
The decision of the delegate of the Respondent, dated 29 September 2022, to refuse to grant the Applicant a Protection (Class XA) visa is set aside and substituted with a decision not to refuse the visa application under s 501(1) of the Migration Act.

I certify that the preceding 269 (two hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

...................[Sgd].....................................................
Associate
Dated: 19 December 2022

Dates of hearing: 5 December 2022 and 7 December 2022

Solicitors for the Applicant: Mr Nikjoo, Nikjoo Lawyers

Solicitors for the Respondent: Ms Jones-Bolla, Sparke Helmore Lawyers

Dates of hearing:	5 December 2022 and 7 December 2022
Solicitors for the Applicant:	Mr Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Ms Jones-Bolla, Sparke Helmore Lawyers