O’Rourke and Minister for Home Affairs (Migration)

O’Rourke and Minister for Home Affairs (Migration) [2019] AATA 1727 (8 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2189
Re:Vanessa O’Rourke
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member T Eteuati
Date:8 July 2019
Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised.
.............................[SGD]...........................................
Member T Eteuati
Catchwords
MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(a) - whether the discretion to refuse to grant the Bridging visa should be exercised – operation of section 501F - application of Direction No. 79 –decision under review set aside and remitted for reconsideration
Legislation
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs[2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
FYBR v Minister for Home Affairs[2019] FCA 500
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Shi v Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member T Eteuati
29 April 2019
BACKGROUND

This is an application by Vanessa O’Rourke (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 12 April 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant first arrived in Australia on 4 March 2016 as the holder of a Visitor visa. On 3 April 2016 the Applicant departed Australia, returning on 1 July 2016. On 29 September 2016, the Applicant departed Australia and her Visitor visa ceased. While in New Zealand the Applicant applied for a Work and Holiday visa which was granted on the same day and the Applicant returned to Australia on 29 September 2016. The Applicant departed Australia on 20 September 2017 only to return the same day. The Applicant has remained in Australia since that date.
On 22 September 2017, the Applicant lodged an application for a further Visitor visa onshore.
On 25 September 2017, the Applicant pleaded guilty to, and was convicted of seven offences.
On 29 September 2017, the Applicant lodged an application for a Partner (subclass 820/801) visa. Her Work and Holiday visa ceased on 29 September 2017 and a Bridging A visa came into effect on 30 September 2017. The Applicant subsequently withdrew her application for a Visitor visa on 4 October 2017.
On 18 April 2018, the Applicant’s application for a Partner visa was refused on the basis that the Applicant was not in a de facto relationship with her partner, Mr Waight. The Applicant sought review of this decision in the Migration and Refugee Division of this Tribunal. On 13 July 2018, the Applicant’s Bridging A visa was cancelled.
On 19 July 2018, the Applicant lodged an application for a Bridging Visa E.
On 2 August 2018, the Applicant was taken into immigration detention and has been detained there since.
On 12 April 2019, a delegate of the Minister refused the Applicant’s application for a Bridging E visa under section 501(1) of the Act. The Applicant applied for review of this decision on 23 April 2019 and that is the application currently before the Tribunal.
On 8 May 2019, the Tribunal (as constituted in the Migration and Refugee Division) remitted the Applicant’s application for a Partner visa to the Department with directions to the effect that the Applicant was in a de facto relationship with her partner. Thus, subject to any operation of section 501F of the Act, which is discussed further below, the Applicant has an outstanding Partner visa application before the Department.
On 14 June 2019, the Department notified the Applicant of an intention to consider refusal of her Partner visa application under section 501 of the Act. At present, the Applicant has been afforded an opportunity to respond to the notice and no decision has as yet been made by the Department in relation to the Partner visa application.
The matter currently before the Tribunal was heard between 1 and 3 July 2019. For the reasons below, I have found that the decision of the Minister’s delegate to refuse the Applicant’s application for a Bridging E visa should be set aside and that the matter be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act to refuse to grant the Applicant a Bridging E visa not be exercised. The Tribunal considers that this is the preferable decision in this case.
ISSUES
Section 501(1) of the Act provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
The two issues are:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character; and if so
·whether the Tribunal considers that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, should be exercised.
If the Applicant satisfies the Tribunal that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under section 501(1) of the Act is not enlivened.
If the Applicant does not satisfy the Tribunal that the Applicant passes the character test, the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in section 501(1) of the Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa not be exercised.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”) and the documents tendered into evidence by the Applicant and marked as exhibits A1 to A15. The evidence contained in these documents is discussed throughout these Reasons: see ‘Annexure 1’. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision. This is in part because the Tribunal has had very little time to write this decision given that the hearing effectively concluded on 3 July 2019, the Tribunal received submissions on a final issue on Friday 5 July 2019 and section 500(6L) dictated that a decision must be made by Monday 8 July 2019.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence is provided below from paragraph 64 of these Reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if she has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (“ACIC”) Criminal History Check for the Applicant dated 28 August 2018 shows the following offences committed by the Applicant:
(a)On 25 September 2017, the Applicant was convicted of the following offences:
(i)Fraud – Dishonestly gain benefit/advantage by employee (between 01/08/2016 and 17/04/2017) and sentenced to 12 months imprisonment to be suspended for 2 years
(ii)Fraud – Dishonestly cause detriment (on 28/11/2016) and sentenced to 12 months imprisonment to be suspended for 2 years;
(iii)Fraud – Dishonestly cause detriment (on 30/11/2016) and sentenced to 12 months imprisonment to be suspended for 2 years;
(iv)Forgery (between 01/08/2016 and 14/11/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
(v)Uttering (between 01/08/2016 and 14/11/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
(vi)Forgery (between 01/08/2016 and 18/08/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
(vii)Uttering (between 01/08/2016 and 18/08/2016) and sentenced to 9 months imprisonment to be suspended for 2 years.
All of the sentences of imprisonment were to be served concurrently, giving the Applicant an effective sentence of 12 months’ imprisonment to be suspended for 2 years.
The Tribunal is satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
SHOULD THE DISCRETION TO CANCEL THE APPLICANT’S VISA BE EXERCISED?
In considering whether to exercise the discretion in section 501(1) to refuse to grant an applicant a visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether to refuse to grant an applicant a visa
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of visa refusal are contained in Part B of the Direction.
Paragraph 11 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (Direction 79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 of the Direction provide a framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa. The principles in paragraph 6.3 are as follows:
(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)    Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Operation of Section 501F of the Act
Section 501F of the Act provides:
“(1) This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
(2) If:
(a) the person has made another visa application that has neither been granted nor refused; and
(b) the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to refuse that other application.
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
(4) If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.
(5) A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7.”
On the first day of the hearing, the Tribunal asked both parties whether section 501F of the Act had any application in the present matter so as to deem the Applicant’s Partner visa application as being refused. The reason that the Tribunal raised this issue was that the matters that the Tribunal was required to consider and the weight to be placed on them in the exercise of the discretion could be substantially different depending on whether section 501F of the Act applied. Both parties indicated that section 501F was not relevant to the current proceedings. Both parties indicated that the result of the current proceedings would not determine whether the Applicant would remain in Australia. Rather, both parties agreed that the result in the current proceedings would simply determine whether the Applicant would be granted a Bridging E visa pending the ultimate determination of her Partner visa application. Thus, both parties agreed that the result of the current proceedings would determine whether the Applicant would remain in detention pending the outcome of her Partner visa application, or whether she would be released into the community pending the outcome of her Partner visa application.
This concession appeared to be consistent with the actions of the Respondent on 14 June 2019 in sending the Applicant a Notice of Intention to Consider Refusal of her Partner visa application under section 501 of the Act.

The hearing in this matter thus proceeded on the basis of the concession made by the parties. That is, the hearing proceeded on the basis that the result of the current proceedings would determine whether the Applicant would remain in detention pending the outcome of her Partner visa application, or whether she would be released into the community pending the outcome of her Partner visa application.
The questions that were asked in cross-examination and by the Tribunal assumed that the result of the proceedings would determine only whether the Applicant remained in detention pending the outcome of her Partner visa application. For example, the questioning of the expert witness by the Respondent and the Tribunal regarding the risk of the Applicant reoffending was focused on the risk that the Applicant would reoffend between the period she may be released and the ultimate determination of her Partner visa application, which would be determined in the not too distant future. The focus of the questioning was not on the risk that the Applicant would ever reoffend if she remained permanently in Australia.
Similarly, the parties agreed that, as the result of the proceedings would have no bearing on whether the Applicant remained in Australia, the consideration of Australia’s non-refoulement obligations were not relevant in this matter.
The hearing concluded on 2 July 2019. At 6:15 PM on the same day, the Tribunal received an email from the Respondent’s representative which read as follows:
“Further to the hearing in this matter, I am instructed that the Applicant may be liable for removal pursuant to s 198(6) of the Migration Act if the Tribunal affirms the delegate’s decision. This is because the refusal of the Bridging visa E triggers the operation of s 501F with the result that Ms O’Rourke’s temporary partner visa application, which is currently before the Department after being remitted back by the Tribunal, is taken to have been refused. As a result, the power in s 198(6) would be enlivened as she is currently detained, and her application for a substantive visa (the partner visa) has been refused by operation of s 501F and is not reviewable under part 5 of part 7 by reason of s 501F(5).
Should the Tribunal wish to receive further submissions from the Respondent on this issue, the Respondent is available to do so by way of oral or written submissions.”
As this apparent change in the Respondent’s position potentially affected the consideration of the discretion in this matter, the Tribunal listed the matter for a telephone directions hearing the following day on 3 July 2019.
At the telephone directions hearing, the Respondent acknowledged that the Respondent’s position as contained in the email of 2 July 2019 represented a departure from the position of the Respondent in their concession that section 501F of the Act had no operation in the current proceedings. The Tribunal raised its concern that the entirety of the proceedings, including the hearing had proceeded on the basis that section 501F of the Act had no operation. The Tribunal further raised its concern that if the Tribunal accepted the Respondent’s more recent position as to the operation of section 501F of the Act, that may mean that the Applicant had not been afforded a fair hearing and she would not be in a position to advance her case on the basis that section 501F of the Act applied, especially given the restrictions on the presentation of evidence provided by subsection 500(6H) and (6J) of the Act.
The Respondent confirmed that their most recent position was that if the Tribunal were to affirm the delegate of the Minister’s decision, section 501F(2) of the Act would be triggered at that point in time, resulting in the deemed refusal of the Applicant’s Partner visa application. Thus, if the Tribunal affirmed the decision to refuse the Applicant’s Bridging E visa application, she would be an unlawful non-citizen who would be required to be removed from Australia as soon as reasonably practicable under section 198 of the Act. The Tribunal notes that the Respondent did not rely on any court authority in support of this interpretation of the operation of section 501F of the Act. Rather, the Respondent’s solicitor indicated that their interpretation was evident from the wording of section 501F of the Act.
The Tribunal notes that the timing of the various decisions made in proceedings relating to the Applicant becomes important in determining whether section 501F of the Act has any application in the current proceedings.
As mentioned above, the Applicant’s application for a Partner visa was refused by a delegate of the Minister on 18 April 2018. The Applicant applied to the Migration and Refugee Division of this Tribunal for a review of that decision. Before that application was remitted to the Department by the Tribunal on 8 May 2019, the Minister’s delegate had refused the Applicant’s application for a Bridging E visa under section 501 of the Act on 12 April 2019. Thus, when the decision to refuse the Applicant’s Bridging visa application under section 501 of the Act was made, her Partner visa application had been refused and no visa application was before the Department at that time. Therefore, at the time when the applicant’s application for a Bridging E visa was refused under section 501 of the Act, the Applicant had made another visa application that had already been refused. Thus, the criterion in section 501F(2) for deemed refusal of the Partner visa application were not met at that time.
This appears to have been accepted by the Respondent. The Respondent is not arguing that section 501F has already deemed the refusal of the Partner visa application, but rather that section 501F will deem the Partner visa application to have been refused if and when the Tribunal affirms the delegate of the Minister’s decision to refuse the Applicant’s Bridging E visa application. Presumably, that is because on 8 May 2019, the Applicant’s Partner visa application was remitted to the Department and is currently before the Department for determination.
The Respondent’s argument appears to rely on two legal premises. The first is that the affirmation by the Tribunal of the Bridging E visa refusal decision has the effect of that decision being remade. The second is that, although the Applicant’s Partner visa application was initially refused and because it was subsequently remitted to the Department by the Tribunal, it is somehow deemed to have not been refused. The Tribunal considers that if either of these premises is incorrect then the Respondents argument must fail.
As to the first premise, in Shi v Migration Agents Registration Authority [2008] HCA 31, Justices Hayne and Heydon of the High Court, cited with approval the decision of Brennan J (as he then was) in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175-176, in which the Tribunal commented, into alia, on the power exercised by the Tribunal under section 43 of the AAT act when affirming a decision. Their Honours stated at [100]:
“The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision-maker. As Brennan J rightly pointed out in an early decision of the Tribunal[79], not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker:
"A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."[1]
[1] See also ToroMartinez v Minister for Immigration & Citizenship [2009] FCA 528 per Rares J at [31].
The Tribunal considers that it is clear from the above statements that when the Tribunal affirms a decision under review it is simply exercising the power in section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The effect of such a decision is that the original decision remains intact. The original powers exercised by the original decision-maker are not drawn upon and the Tribunal has not remade the original decision. The original decision is simply left intact.
It follows that a decision to affirm the delegate’s decision to refuse the Applicant a Bridging visa does not have the effect of remaking the decision and does not trigger the operation of section 501F.
Even if the Tribunal had come to the contrary conclusion, it appears that it is doubtful that the second premise necessary for the Respondent’s argument to succeed, is made out. That is because the applicant’s application for a Partner visa has been refused, and as such it appears that the criterion for deemed refusal in section 501F(2) has not been made out.
The Tribunal notes that it may be arguable that once the Partner visa application was remitted by the Tribunal to the Department on 8 May 2019, there remained before the Department an application which had not been ultimately determined, and that at that time section 501F(2) operated to deem refusal of the otherwise outstanding application. However this argument was not put by the Respondent, and the Tribunal considers that this is a less obvious interpretation of the effect of section 501F of the Act in this case. Therefore, the Tribunal proceeds on the basis that section 501F of the Act does not operate in this case to deem the Applicant’s Partner visa application to have been refused, either currently, or in the event that the Tribunal were to affirm the Minister’s delegate’s decision.
The result is the Applicant is left in the position upon which the hearing proceeded; that the Tribunal’s decision in this case will only determine whether the Applicant must remain in detention or will be released into the community pending the outcome of her Partner visa application.
As mentioned previously, the Applicant has been sent a Notice of Intention to Consider Refusal of her Partner visa under section 501 of the Act. The matters that will be relevant in a determination of whether a substantive visa should be refused and the weight to be given to various considerations is likely to be very different from the matters that will be relevant and the weight to be given to considerations in the current proceedings relating to the refusal of a Bridging E visa. A decision by the Tribunal in this matter to affirm the delegate’s decision to refuse the Applicant a Bridging E visa should not be determinative that the same result should be reached in relation to proposed refusal regarding her substantive visa application. In the same way, a decision to set aside the Bridging E visa decision should not be determinative of the outcome of consideration of refusal regarding the applicant’s substantive visa application.
Any future decision-maker considering refusal of the applicant’s substantive visa application will have to make their own findings of fact, to apply the law and the direction to the facts, and reach their own conclusions as to whether the applicant passes the character test and the exercise of the discretion to refuse the application under section 501 of the Act.
The considerations in the Direction that will be relevant in the present case may be significantly different from those in the usual case where the outcome of the Tribunal’s decision may determine whether an Applicant will be allowed to remain in Australia. This is especially evident in this case regarding the consideration of Australia’s international non-refoulement obligations.
As mentioned above, these proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. In the present case, the Applicant was refused a Bridging E visa. She currently has an application for a Partner visa before the Department. If she is successful in her current application before the Tribunal then it is likely that she will be granted a Bridging E visa and be freed from immigration detention. That Bridging E visa is likely to remain until her application for a Partner visa is determined. If she is unsuccessful in her current application before the Tribunal, she will remain an unlawful non-citizen and be required to remain detained pursuant to sections 189 and 196 of the Act. If she is ultimately successful in being granted a substantive visa, she will be allowed to remain in Australia. If she is not ultimately successful in being granted a substantive visa, it is likely that she will be removed from Australia pursuant to section 198 of the Act.
These proceedings will not determine whether the Applicant is allowed to enter into, or to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the outcome of her substantive visa application with her partner in the community, or whether she must await the outcome of her substantive visa application in detention.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Department and the Tribunal and evidence given by witnesses at the hearing in response to questions in cross examination and from the Tribunal.
Details of Offending
The Applicant’s offending can be broadly divided as relating to 3 sets of circumstances. The first category relates to offences committed by the Applicant in securing and maintaining employment with a company called Medscribe. The second category relates to offences committed by the Applicant relating to communication with a court in the United States regarding her inability to return to the United States to attend court owing to her claimed medical condition. The third category relates to offences committed by the Applicant regarding purchases she made over the Internet.
The Tribunal understands, and the parties accepted, that the Applicant had pleaded guilty in relation to all of the charges brought against her. The material facts relating to those charges, to which the applicant had guilty, are contained in a Queensland Police Service Sentencing Schedule (“sentencing schedule”). The circumstances relating to the offences committed by the applicant relating to Medscribe were described in the sentencing schedule as follows:
“Medscribe is a private company that operates in South East Queensland. The company employees trained persons to work alongside qualified medical practitioners in hospitals. The role of a ‘scribe’ is aimed at working alongside doctors to focus on the administrative tasks of taking patient notes and other clerical duties.
The complainant company’s staff recruitment policy targets persons with medical knowledge such as third of [sic] fourth year medical students or like persons. Potential employees are required to have a sound base of medical knowledge and medical terminology. Given that ‘scribes’ are translating information such as medical history and required medication such knowledge is vital.
In October 2016 the defendant applied for a job with Medscribe. At the time of applying the defendant provided a detailed resume to the complainants. Part of this resume included that she was a formally trained doctor and that she had undergone her studies at Temple University, Pennsylvania, USA.
The defendants [sic] resume stated that she had obtained a ‘MD and PhD in Medicine and Molecular Biology’ having studied at Temple University from 2013 to 2016.
The defendant subsequently went through the recruitment process with Medscribe where in various interviews she purported to be a US trained doctor. The defendant over the recruitment period provided false contact details for the university and personal referees.
Subsequent checks and due diligence by the complainant company failed to verify the qualifications claimed by the defendant however she was none the less employed in the role of a Medscribe.
The defendant was employed in a casual role and a received a fortnightly pay check. The complainants advised that over a period of time they noticed the defendant displayed a lack of medical knowledge that one might expect form [sic] a trained doctor.
The complainants advised that when questioned the defendant stated that she was suffering from brain cancer and that her treatments left her with some short term memory loss that affected her medical knowledge recall.
As such the complaints [sic] moved the defendant into a training and marketing role with the company. The defendant then trained other Medscribes for the company and undertook a role of expanding the company into other hospitals throughout Queensland and New South Wales.
In this role the defendant met with, and communicated with, various hospital doctors and administrators. Throughout this period the defendant referred to herself verbally and in written communications as ‘Doctor’.
In total the defendant was paid some $6871.02 between 13 November 2016 and 2 April 2017.
In April 2017 the QPS were advised by US law enforcement agencies that the defendant had never studied at Temple University, Pennsylvania and never received any other formal medical training.
Police then contacted the complainants and the formal complaint was made. The complainants advised that the defendant’s purported medical degree was the basis for her employment.
On 17 April 2017 the defendant took part in a formal record of interview with QPS detectives. During the interview the defendant admitted to gaining employment based on the false resume. The defendant admitted that she was not a trained doctor and had never attended Temple University.
The defendant stated that she had made up these details in order to gain employment with the complainant company.
An examination of the defendant’s computer located a copy of the false resume that she used to gain such employment.”
The Applicant provided evidence to the Tribunal by way of written statements and gave evidence at the hearing in relation to her offending in response to questions in cross-examination and from the Tribunal. The Tribunal also had an account from a psychologist as to what the applicant had told him regarding her offending.
The Applicant’s evidence to the Tribunal regarding the offences committed in relation to her employment with Medscribe differ substantially from those contained in the sentencing schedule to which she pleaded guilty.
First, the Applicant said that she did not furnish Medscribe with a resume prior to being employed by Medscribe. She said that she was interviewed by Medscribe and that during the interview she indicated that she had attended medical school but had not completed her medical degree. The Applicant said that after she had been employed by Medscribe she produced a resume indicating the same to be placed on her file as this was required by the human resources area of Medscribe.
The Applicant denied that she had told Medscribe that she was a doctor, that her resume indicated that she was a doctor or that she ever represented to anyone during her employment at Medscribe that she was a doctor. These denials are of course at odds with the information contained in the sentencing schedule which indicated that in order to secure employment with Medscribe the Applicant produced a resume which indicated that she was a doctor, that she had obtained a ‘M.D. and PhD in Medicine and Molecular Biology’, that in interviews she purported to be a US trained doctor and that throughout her employment with Medscribe that she referred to herself as ‘Doctor’ verbally and in written communications.

The Applicant admitted that she had never undergone any training as a doctor. At the hearing she said that she had a Bachelor of Science degree in Biology. She then changed her evidence and said that, while she had completed all of the requirements for the conferral of a Bachelor of Science degree in Biology, she was never conferred a Bachelor of Science degree in Biology.
The Tribunal notes that the Applicant’s partner gave evidence that the Applicant had told him that she had undertaken some medical training at medical school in the United States and that she held a degree in biology. Indeed at the hearing, the Applicant’s partner said that the Applicant has always maintained to him that she had attended medical school. The Applicant’s partner also gave evidence that the Applicant had told him that she had told Medscribe that she was a doctor.
Mr Jenkins, a solicitor who gave evidence in support of the Applicant’s application, indicated that he met the Applicant at the end of 2017. He said that the Applicant had told him that she had trained as a medical student and was a doctor. In addition, the evidence from the psychologist indicated that the Applicant had told him that she had presented herself as a doctor in order to obtain employment with Medscribe. Further, the psychologist indicated that the Applicant had represented that she had graduated with a degree in biology. Finally, the sentencing schedule indicates that the Applicant had told police that she had produced and furnished a false resume indicating that she was a doctor in order to gain employment with Medscribe.
The Applicant denied that when Medscribe determined that she appeared to lack the medical knowledge expected from a doctor she had told Medscribe that she was suffering from brain cancer and that her treatments left her with some short-term memory loss that affected her medical knowledge recall. The Applicant said that she had never told Medscribe that she had brain cancer or that she had a tumour on her pituitary gland.
The Tribunal also notes that the sentencing schedule indicates that the Applicant was initially employed as a medical scribe but Medscribe changed the nature of her employment to focus on management and training after she evidenced a lack of medical knowledge and she explained that treatment for brain cancer affected her memory. However, the Applicant gave evidence that she was never employed as a medical scribe and was employed as a manager and medical scribe trainer.
The circumstances relating to the offences committed by the Applicant relating to correspondence with the US Court were described in the sentencing schedule as follows:
“Prior to leaving the USA the defendant was required to attend a court hearing in the Montgomery County District Court, Montgomery Bill, Pennsylvania, USA in August 2016.
This hearing was in relation to unrelated theft offences that occurred in US jurisdiction.
On 16 August 2016 a faxed letter was received at the Montgomery County District Court. The fax was later traced as having been sent from the ‘Mantra Resort in Mooloolaba, Queensland Australia’.
The letter purported to be from Dr John REARDON from the ‘Sunshine Coast Haematology and Oncology Clinic’. The letter stated that the defendant was required to stay in Australia for another five months to receive cancer treatment and hence was not able to return to the USA and appear in court.
Subsequent police checks show that the letter is a forgery. Dr REARDON advises that at no stage did he ever produce such a letter and at no stage has he ever heard, or treated, the defendant.
Further investigations have failed to find any record of the defendant having sought cancer treatment whilst in Australia.
Checks with the Mantra Resort Mooloolaba show that the defendant was staying at the resort at the time of the letter being sent to the Montgomery County District Court and that staff recall sending a fax to the USA on behalf of the defendant.
On 14 April 2017 QPS detectives executed a search warrant at the defendants [sic] address in relation to other matters. During the course of the search warrant police seized the defendants [sic] Apple laptop computer.
At this time the defendant took part in a formal record of interview. During the interview the defendant denied ever sending the letter to the Montgomery County District Court and denied all knowledge of the offence.
The defendant also denied ever faking her cancer diagnosis and claimed that she had been set up by her family and friends who had their own agenda.
On 17 April 2017 the defendant was again further interviewed by QPS detectives. On this occasion the defendant changed her version and admitted that she never had never suffered nor been diagnosed with brain cancer.
A later search of the defendant’s computer found an exact copy of the forged letter under the hand of Dr REARDON.
The forged letter sent by the defendant was created in Queensland and was sent to the USA by the defendant whilst in Queensland.
The defendant was later issued with a NTA.”
Before the Tribunal the Applicant admitted that she had forged the letter from Dr Reardon and sent that letter to the court in the United States in an attempt to avoid having to return to the United States. However, the Applicant indicated that she was not trying to avoid returning to face charges before a court in the United States. Rather, she told the Tribunal that her ex-partner, a police officer in the United States, had organised for the Applicant to be fraudulently charged with offences she did not commit. She said that she feared returning to the United States as her ex-partner had threatened that he would kill her. The Applicant had described in some detail in her written statements and to the psychologist that she had been in an abusive relationship with her ex-partner for some years.
The Applicant also denied that a copy of the fraudulent letter had been contained on her computer. She said that she had used the business centre at the hotel where she was staying in Mooloolaba to create the letter and that she had sent the letter by facsimile using the hotel’s facsimile machine.
The circumstances relating to the offence committed by the Applicant relating to first purchase she made over the Internet were described in the sentencing schedule as follows:
“On 28 November 2016 a female person, the defendant now before the court, has placed an online order with the complainant company and purchased a swimming pool and accessories. The total value of the items purchased was $1322.05. At this time the defendant used Paypal to complete and pay for the transaction.
The defendant provided her contact telephone number and her address as [address redacted]. Checks made by police show that at the time this was the current address for the defendant. On 29 November 2016 the defendant attended at the complainant company and picked up the ordered items. At this time the defendant showed photographic identification in the form of a drivers license [sic].
Some days later the informant was contacted by Paypal and advised that the amount of a $1321.40 had been removed from the complainant company’s bank account as Paypal had been contacted by the defendant and advised that she had not received the ordered goods from the complainant company.
The informant then contacted the defendant via SMS message to ascertain what had occurred. In a series of SMS messages between the defendant and the informant the defendant was advised that she was on CCTV footage at the complaint [sic] store picking up the items.
The defendant then changed her version and stated that the issue was between the informant and the ‘credit card’ owner and was due to ‘faulty materials’ being provided. The defendant refused to expand on this advised the informant that the matter did not involve her and that she had been advised to ‘stay neutral’. The informant then made a formal complaint to police.
On 10 May 2017 police executed a search warrant at the defendant’s address. At this time police located files and documentation relevant to the offence. The defendant took part in a formal record of interview in which she stated that she had picked up the pool equipment from the complainant company. The defendant then gave a version that her ex defacto in the United States had ordered the poor items for her and had used their joint Paypal account to pay for the goods.
The defendant stated that when she picked up the items she later found them to be faulty and not in proper working order. The defendant stated that at no time did she do the Paypal reversal and that her ex defacto must have done so. The vesion given by the defendant during the course of the interview was inconsistent and at odds with known facts and documentation received from PayPal.
This documentation shows that the order was placed by the defendant from within Australia and that the monies refunded went into the defendants [sic] bank account and accessed in Australia. As a result of other investigations into the defendant assistance has been sought from law enforcement agencies in the United States of America.
Initial advice from those agencies is the defendant’s ex defacto denies any knowledge of the matter and denies ever ordering any pool equipment for the defendant. The defendant was later issued with a NTA in relation to this matter.
RESTITUTION in the amount of $1322.05 has been paid to the informant/complainant [complainant’s name redacted] prior to the sentence.”
Before the Tribunal the Applicant maintained that she had ordered the pool but indicated that she had not created the chargeback. She indicated that her ex-partner must have been responsible for the chargeback. The Tribunal notes that the Applicant’s explanation, that she had not created the chargeback may be inconsistent with a plea of guilty and conviction for “Fraud - dishonestly cause detriment” as her explanation, if accepted, would mean that there was never any dishonesty on the Applicant’s part.
The circumstances relating to the offence committed by the Applicant relating to second purchase she made over the Internet were described in the sentencing schedule as follows:
“… On 30 November 2016 the complainant sold a ’Vitamix 750’ blender via eBay to username ‘orour-vanes’.
The buyer provided the name Vanessa O’ROURKE of [residential address redacted]. O’ROURKE is a female person, the defendant now before the Court. The defendant paid $1200.00 for the item plus a postage fee of $35.00.
The defendant used Paypal to make the transaction. The complainant then sent the item to the defendant at the listed address via Australia Post registered mail. Checks with Australia Post show that the item was delivered at 1:35 PM on 6 December 2016 and signed by a V ROURKE.
Some days later the informant was contacted by Paypal and advised that the amount of a $1235.00 had been removed from his bank account as Paypal had been contacted by O’ROURKE and advised that she had not ordered the stated items. A formal complaint was then made to police.
On 10 May 2017 police executed a search warrant at the defendants [sic] address. At this time police located files and documentation relevant to the offence including the Vitamix blender. The defendant took part in a formal record of interview in which she stated that she had ordered the item from the informant on Ebay as outlined.
The defendant stated that she had never received the item and it had hence sought a refund. The defendant stated that the Vitamix located by the police during the search warrant was a new one that she had ordered it from the ‘Good Guys’ online. The item that police seized did not appear new and had a number of wear marks consistent with an older and used item.
The defendant could offer no explanation why Australia Post documentation showed that the item had been delivered to her address and signed by her on the listed date. .The defendant was later issued with a NTA. Nil restitution sought as item has been recovered.”
The Applicant’s evidence before the Tribunal was that she ordered the blender on eBay in November 2016. She said that at the time that she ordered the blender she was of the understanding that it would arrive approximately three business days from the date of purchase. She said that “after the period of no more than 14 business days” she contacted eBay to advise that she had not received the blender. She said that she then cancelled her order for the blender. The Applicant said that after she cancelled the eBay order she ordered another identical blender from the Good Guys through eBay.
The Applicant said that on 6 December 2016 she received a blender which was delivered to her address. She said that at that point she believed the blender that she received was the one that she purchased from the Good Guys. The Applicant admitted that she did not have evidence of having purchased a blender from the Good Guys, nor did she have such evidence when her address was searched by police in early 2017.
The timeline of the events in question make it difficult to believe aspects of the Applicant’s evidence to the Tribunal. The sentencing schedule indicates that the Applicant purchased the blender through eBay from the complainant on 30 November 2016. Three business days from 30 November 2016 ended on 5 December 2016. Thus, unless the Applicant received the blender which she says she ordered from the Good Guys on the same day that she ordered it, the Applicant could not have waited three business days before cancelling the initial order and placing a new order with the Good Guys, let alone waiting up to 14 business days prior to the cancellation of the order. It is also difficult for the Tribunal to accept that the Applicant was unable to secure evidence from eBay or the Good Guys to confirm that she had in fact placed an order for a blender from the Good Guys through eBay. If she had done so, there is no explanation as to why she never received a blender from the Good Guys. The Tribunal notes that the Applicant’s explanation, that she thought that the blender from the complainant was in fact a blender she received from the Good Guys is inconsistent with a plea of guilty and conviction for “Fraud - dishonestly cause detriment” as her explanation, if accepted, would mean that there was never any dishonesty on the Applicant’s part.
There were two additional matters which arose on the evidence filed by the Applicant which gave the Tribunal cause for concern about possible dishonesty by the Applicant in the past. First was an article in a United States newspaper indicating that a crowdfunding page had been set up on “GoFundMe” to benefit the Applicant. The article indicated that the Applicant had been studying at Temple University to become a brain surgeon when she was diagnosed with brain cancer. The article indicated that the Applicant had to travel to Australia for a new type of treatment which was unavailable in the United States. The article indicated that the first round of treatment had been successful but that the Applicant needed to pay for the second round of treatment. The article indicated that a benefit dinner to raise money for the applicant would take place on 26 June 2016. The article indicated that about $10,000 towards a goal of $65,000 had been raised on the GoFundMe page.
The Applicant denied any involvement with the GoFundMe page. She speculated that the page must have been set up by her ex-partner to benefit himself. As the applicant has denied involvement with the page and the applicant has not been convicted of any offences in relation to the page, for the purposes of these proceedings, the Tribunal places no weight on the article relating to the GoFundMe page.
The other matter which the material submitted by the Applicant raised was that on 22 September 2017, when the Applicant applied for a Visitor visa, the applicant appears to have provided the Department with misleading information. In the application form, in response to a question as to the Applicant’s relationship status the Applicant indicated that she was divorced. There was no mention in the application that the Applicant was in a de facto relationship. A week later on 29 September 2017, the Applicant lodged an application for a Partner visa. In that application, the Applicant indicated that she was in a de facto relationship with Jason Waight since 1 September 2016. This information may indicate that the Applicant provided misleading information to the Department in her application for a Visitor visa. The Applicant admitted that she provided deceptive information to the Department in her application for a Visitor visa on 22 September 2017. She said that she had sought advice from a migration agent who had effectively told her that she was unlikely to be granted a Visitor visa if she disclosed that she was in a de facto relationship with an Australian citizen. That may have been because a criterion for the grant of a Visitor visa is that the applicant intends to stay temporarily in Australia for the purposes of visiting Australia. That intention would be inconsistent with the desire to remain permanently in Australia to live here with her partner. The Applicant admitted that she provided misleading information to the Department because she thought that if she disclosed that she was in a de facto relationship with an Australian in Australia, she would not be granted the Visitor visa that she sought. At the hearing the Applicant apologised for having done so and admitted that she had done the wrong thing to obtain a benefit.
The Applicant indicated that she had been in detention for almost a year and dearly missed her partner. She also said that she felt responsible for the hardship to her partner of her being in detention and that he had spent a great deal of time and money travelling from Cairns to Sydney to visit the Applicant in detention. She said that she had been undergoing counselling while in detention and now fully appreciated the gravity of her past actions. The Applicant had provided documentary evidence to the Tribunal that she had been attending counselling whilst in detention and that she was finding detention very difficult and detrimental to her mental health. The Applicant said that she took full responsibility for being dishonest in the past and that she would never commit any offence again in the future.
The Applicant said that she wanted an opportunity to remain in Australia with her partner and to start a life together here. She indicated that there was no risk that she would reoffend. The Applicant indicated that she wanted to have the opportunity to remain in the community to fully rehabilitate and to prove that she had rehabilitated. The Applicant indicated that since she has been in detention she makes purchases online approximately twice a week. She said that she had never had any problems or made any chargebacks in relation to online purchases made while in detention. She said that this evidenced that she would not repeat the kinds of crimes of dishonesty that she committed previously.
The Applicant’s Partner
The Applicant’s partner had provided a statement to the Tribunal and provided evidence at the hearing in response to questions in cross examination and by the Tribunal. The Applicant’s partner confirmed that he had met the Applicant in mid-2016 and that they had become a de facto couple shortly thereafter.
The Applicant’s partner indicated that the Applicant’s detention placed a strain on the relationship in that it was very difficult for the couple to spend time together as he had to travel from Far North Queensland to Sydney to visit her. This cost the Applicant’s partner a significant amount of time, money and emotional distress.
The Applicant’s partner described that the Applicant has suffered extreme behavioural changes since she has been in immigration detention and had gone from being a happy and energetic person to being miserable, vulnerable and anxious.

However, the Applicant’s partner indicated that the Applicant’s time in detention was not without its benefits. He said that detention had given the Applicant time to reflect on her life choices and to acknowledge the bad choices that she had made in the past. He also said that during her time in immigration detention the Applicant had helped non-English-speaking detainees improve their English.
The Applicant’s partner indicated that, if the Applicant is released from detention, the couple plan on the applicant attending counselling to deal with the traumatising effects of immigration detention and to reduce the likelihood that the Applicant will make poor decisions in the future. He said that he has sent money to the Applicant’s mother so that if the Applicant were released, she, the Applicant’s grandmother and the Applicant’s sister can visit the couple in Australia.
The Applicant’s partner indicated that the couple were planning on purchasing a home in Australia this year and that they’re both very excited by this. The Applicant’s partner has recently begun a law degree and plans to eventually transition away from his current business in the building industry to become a lawyer.
The Applicant’s partner has indicated that the couple intend to build a future together in Australia including raising children together here.
The Applicant’s Mother
The Applicant’s mother provided a statement the Tribunal. The Applicant’s mother indicated that the Applicant and her partner were having great difficulty dealing with the Applicant being in detention. She indicated that the Applicant’s partner had sent her money to allow her and other family members to travel to Australia to visit the Applicant. The letter indicates that the Applicant and her partner are very close and wish to settle in Australia and start a family here.
It was apparent from the Applicant’s mother’s answers in cross-examination that she knew very little about the nature of the Applicant’s offending and it appeared that her evidence was that the Applicant had told her that she had made mistakes, but she did not describe to her mother in any detail what the offences involved.
Corey Jenkins
Mr Corey Jenkins, a solicitor and friend of the Applicant, provided a statement to the Tribunal and gave evidence at the hearing. Mr Jenkins indicated that he had known the Applicant since the end of 2017 and that she and his wife were good friends.
Mr Jenkins indicated that the Applicant and her partner had been living together in a genuine de facto relationship prior to her detention. Mr Jenkins indicated that he was aware that the Applicant had been convicted of crimes of dishonesty but was unaware of the details of the offending. Mr Jenkins indicated that he understood that the offending and been out of character and that he had not noticed the Applicant being involved in any dishonest conduct.
As mentioned previously Mr Jenkins indicated that the Applicant had told him, probably in late 2017, that she had studied medicine and was a doctor.
The psychologist
Dr Luke Hatzipetrou (“the psychologist”) is a clinical psychologist who provided a report regarding the Applicant’s risk of reoffending which was before the Tribunal.
The psychologist indicated that he spent four hours with the Applicant spanning two consultations. The psychologist produced a detailed report on 6 December 2018. That report was informed by a number of documents provided to the psychologist including the decision record of the Bridging visa refusal decision, the sentencing schedule, the sentencing remarks and a number of other relevant documents. The report discussed the Applicant’s relevant social history, relationships, medical history, drug and alcohol history, forensic history, psychiatric history, a mental state examination, psychological assessment, offence information, risk assessment and finally provided the psychologist’s opinion as to the Applicant’s risk of reoffending.
The psychologist indicated that the Applicant’s score on the PCL – R diagnostic tool reflected a low risk of general recidivism.
The psychologist concluded:
“Miss O’Rourke’s risk of reoffending in general is likely to be low. Importantly, these risk assessment tool provides estimates of risk based on available clinical interviews and collateral information. Importantly, there were no classifications of negligible risk. There are a number of factors that contribute to the estimate of risk such as impulsivity, substance abuse, multiple sexual relationships apart from criminal history. As such, a member of the general community without criminal history, can be evaluated on these tools and achieve an estimate of low risk. Importantly, these risk assessment tools allow forensic clinicians to integrate these findings into a comprehensive clinical evaluation whereby contextual factors are also considered and developed into a risk formulation. Miss O’Rourke’s risk cannot be considered negligible as the current risk assessment and evaluation confirms a low risk of reoffending. Furthermore, the risk assessment tools provide information that assist clinicians and service providers to deliver specific treatment, rehabilitation and/or management to an individual.
Within the literature one must consider the protective factors possessed by offenders. These protective factors are equally important to the release of offenders in the community and general rehabilitation. With regards to Miss O’Rourke, she has close family attachment to her grandparents and has demonstrated prosocial behaviour throughout her upbringing. While the offences reflected a misalignment of the moral compass, there was evidence of well-developed moral reasoning and social behaviours. She did not present with pervasive patterns of psychopathy or anti-sociality. Apart from the offence period, Miss O’Rourke has demonstrated a capacity to maintain multiple forms of employment whilst studying in the US. Importantly she has demonstrated more effective coping strategies and accepts full responsibility for her offending behaviours.
Finally, it should be noted that Miss O’Rourke accepts her previous criminal offending was not consistent with Australian community standards and she has not minimised or justified her criminal behaviours. Conversely, she has made strident attempts to address and change her lifestyle choices and behaviours.”
It was raised with the psychologist that it appeared that some of the Applicant’s evidence before the Tribunal was inconsistent with the documentary evidence before the Tribunal. The Tribunal gave the example that the Applicant had told the psychologist that she had represented to Medscribe that she was a doctor in order to secure employment with them, however at the hearing, the Applicant had indicated that she had never represented to Medscribe that she was a doctor. The psychologist said that compulsive lying was only one of many factors which were relevant in determining whether the Applicant was likely to reoffend and that if the Applicant had been dishonest before the Tribunal, and an assessment had been made that the Applicant was a compulsive liar, it was possible that the assessment as to recidivism would shift from “low” to “low to moderate”.
The psychologist accepted that a person assessed as being a low risk of recidivism did not mean that such a person would not reoffend. Indeed, the psychologist conceded that if the Applicant had been assessed after her first offences were committed that she would have been assessed as presenting a low risk of recidivism, and yet she went on to reoffend.
The Tribunal asked what the psychologist’s assessment of the risk of recidivism by the Applicant would be if she were released on a Bridging visa for a short time until her Partner visa application was assessed. The psychologist indicated that the Applicant would present a very low risk of recidivism during this period and any offending during this limited period would be “inexplicable.”
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that decision-makers should give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)   The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)   The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)   The cumulative effect of repeated offending;
i)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence, summarised the applicable principles as follows at [78]-[79]:
“(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The Applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.”
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP, stated at [92]:
“…The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.”
As in HZCP and LQZW, the convictions (and sentences imposed) in question in this case were a precondition to the decision under subsection 501 of the Act and the exercise of the discretion by the Tribunal. In the present case, as in LQZW, the Tribunal has to proceed on the basis that the Applicant did commit the offences for which she was convicted and the essential facts upon which the offences were based and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
Thus, the Tribunal accepts the factual basis for the convictions as stated by in the sentencing schedule. To the extent that the Applicant’s version of events is inconsistent with those statements, the Tribunal rejects the Applicant’s version and accepts that in the sentencing schedule. However, the Tribunal is willing to accept aspects of the Applicant’s evidence in relation to the circumstances surrounding the offences. The Tribunal does not do so in any way to impugn the convictions themselves, but rather to understand the circumstances and context in which the offending occurred.
Therefore, for the purposes of this decision, the Tribunal is willing to accept that the Applicant was previously in an abusive relationship which ended in acrimony. The Tribunal is willing to accept that the Applicant lied about her qualifications to Medicare and to others, in part, in order to feel more important. The Tribunal is willing to accept that the Applicant feels that her ex-partner is “out to get her”. The Tribunal is willing to accept that the applicant forged a letter from a doctor and provided it to a US court because she did not wish to return to the United States.
The Tribunal does not accept that the Applicant did not represent that she was a doctor to Medscribe. Indeed, the Tribunal finds that the Applicant told Medscribe that she was a doctor in order to secure and maintain employment with Medscribe. This is consistent with the evidence of the psychologist that the Applicant admitted to him that she had represented to Medscribe that she was a doctor in order to secure and maintain employment. It is also consistent with the evidence of Mr Jenkins that the applicant had represented to him that she was a doctor. It is also consistent with the information in the sentencing schedule and the fact that the Applicant pleaded guilty to offences arising from her lying to Medscribe about her qualifications to obtain and maintain employment with them.
The Tribunal saw also finds that the Applicant lied to Medscribe by telling them that her lack of medical knowledge was caused by memory loss as a result of treatment of brain cancer. This is consistent with the Applicant lying about having brain cancer in the letter she forged and sent to the court in the United States. There is also no convincing explanation for why Medscribe or the police would have concocted such a claim.
The Tribunal finds that the Applicant deliberately and dishonestly created chargebacks in relation to goods that she had bought over the Internet once she had received those goods in order to not have to pay for the goods. The Tribunal does not accept that the Applicant’s ex-partner created the chargeback in relation to the swimming pool. This explanation is inconsistent with the information in the sentencing schedule and inconsistent with the charge of dishonestly causing detriment. Further, the Tribunal does not accept the Applicant’s explanation, described above, that she innocently created a chargeback in relation to the blender and how she believed that the blender that she received was from the Good Guys. The Applicant’s explanation simply beggars belief. The Applicant purchased the blender from the complainant on 30 November 2016. She said that she understood that the blender would be received within three working days of that date. Three working days from 30 November 2016 fell on 5 December 2016, and yet according to the applicant she had cancelled her original order, placed a new order with the Good Guys and received her order from the Good Guys by the following day on 6 December 2016. The Applicant’s explanation is not supported by any evidence that the applicant ever purchased a blender from the Good Guys. The fact that the Applicant never received a blender from the Good Guys and did not seek reimbursement also supports this conclusion. This explanation is not accepted.
The nature of the Applicant’s offending has been described in detail in the sentencing schedule above. It involved three offences of fraud, two offences of forgery and two of uttering. Uttering in the criminal law context is a term usually used to describe the use of forged material with intent to defraud others.
The offences which the Applicant has committed cannot be described as violent or sexual crimes. The offences were not of a violent nature and were not committed against women or children. The offences were not committed against vulnerable members of society or Government officials or representatives. The Applicant was found guilty of seven crimes of dishonesty and was given an effective sentence of 12 months imprisonment to be fully suspended for two years. The offences were at the lower end of the spectrum in terms of seriousness. That is reflected by the fact that the sentencing judge while imposing a 12 month sentence of imprisonment fully suspended that sentence for a period of two years.
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. However, the Tribunal has some concern that the Applicant provided misleading information to the Department in a Visitor visa application by failing to declare the nature of a relationship with her de facto partner. The Applicant has not sought to hide her criminal offending from the Department. However, the Tribunal has found that she has tried to downplay her offending by being dishonest in her evidence before the Tribunal as to the nature of her offending. The offences were not committed in another country. The offences were not committed while the Applicant was in immigration detention or during an escape from immigration detention.
While the matters listed in paragraph 11.1.1(1) of the Direction do not appear to dictate a finding that the Applicant’s offending was particularly serious, the Tribunal finds that there was a level of seriousness in relation to some of the Applicant’s offending.
The Tribunal considers that the Applicant’s representing of herself as a doctor to Medscribe in order to obtain employment and the maintenance of this lie throughout her employment are serious matters. The Tribunal also considers that the Applicant’s actions in forging a letter from a doctor in Australia and providing that forged document to a court in the United States is serious. Of particular concern in this case is that it appears that, even during the hearing before the Tribunal, the Applicant struggled to tell the truth.
Rather than accepting the material facts for the matters for which she pleaded guilty and was convicted, the Applicant presented the Tribunal with an alternative story in relation to many of her convictions and attempted to downplay her culpability for the offences. For example, contrary to the sentencing schedule and much of the other evidence, the applicant indicated that she had never told Medscribe that she was a doctor or that she had claimed that her treatment for brain cancer had caused her memory loss. She also indicated that, there had been no dishonesty on her part in relation to the offences of “fraud - dishonestly cause detriment“ involving her Internet purchases.

The Tribunal finds that some of the Applicant’s offences were serious as was her apparent failure to tell the truth during the Tribunal hearing. The nature of the offences and relevant conduct were that she has committed multiple offences of dishonesty and appeared to be dishonest before the Tribunal.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 11.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) provides for the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of intended stay in Australia.
Paragraph 11.1.2(4) of the Direction provides a decision-maker should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal considers that if the Applicant were to repeat the conduct which resulted in the convictions for crimes of dishonesty the most obvious harm to individuals or the Australian community would be that they are deprived, at least temporarily, of payment for goods sold to the Applicant.
The harm to individuals or to the Australian community if the Applicant were to commit offences such as forging and uttering false documents is more difficult to determine as it will depend on what is forged and what is falsely claimed. If the Applicant lies to a future employer about her qualifications in order to secure employment, that would most directly result in the employer paying the Applicant money obtained through fraud. If the extent of that lie was that the Applicant had some experience in say, serving ice cream, the harm to the employer and customers may not be great. If the extent of the lie is that the Applicant has experience or qualifications to perform a job which may directly affect the health and safety of members of the community, such as being a surgeon on aeroplane pilot, the harm to individuals or members of the Australian community may be very great indeed.
However, the Tribunal considers that there is a negligible risk that the Applicant will seek to falsify her qualifications in order to obtain employment between now and the determination of her Partner visa application. The evidence before the Tribunal is that it is publicly known that the Applicant has fraudulently claimed to be a Doctor in order to secure employment with Medscribe and the Applicant’s activity will be closely scrutinised by the Department pending their consideration of whether to refuse her Partner visa application. The more likely risk, although very low, is that the Applicant will attempt to deprive others of payment for purchases made over the internet.
Overall, the Tribunal considers that if the Applicant were to reoffend that her offences would be likely to be further crimes of dishonesty and most likely attempting to deprive others of payment for goods sold to the applicant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has committed a number of crimes of dishonesty within about a year of arriving in Australia. There is evidence that the Applicant has been undergoing counselling while in immigration detention.
As discussed in more detail above, the assessment of the psychologist was that the Applicant represented a low risk of reoffending. However, the psychologist indicated that, if it were found that the Applicant had been dishonest to the Tribunal during the hearing and if the Applicant were to be diagnosed clinically as a compulsive liar, that may change the assessment from a “low” to a “low to moderate” risk of reoffending. When asked about the Applicant’s chances of offending between now and the determination of her Partner visa application in the months to come, the psychologist indicated that there was a very low risk that the applicant would reoffend during that time period and said that if she were to reoffend during that time period that this reoffending would be “inexplicable”.
As I have mentioned, the Tribunal has found that the Applicant has been less than honest before the Tribunal. However that is not the end of the matter. The question is how the dishonesty before the Tribunal relates to the exercise of the discretion. The most obvious answer would appear to be that her dishonesty before the Tribunal may go to the risk that the Applicant will continue to commit crimes of dishonesty; the types of offences she has committed in the past.
The Respondent made the point that if the Applicant could not be honest before the Tribunal then it would be difficult for the Tribunal to find that the Applicant would not offend even in the short time between release and the determination of her Partner visa application. There is some force to that submission.
Ultimately, the Tribunal is willing to accept the only expert evidence before the Tribunal and, as the Tribunal considers that the Applicant has been dishonest before the Tribunal, considers that the Applicant presents a “low” to “low to moderate” risk of reoffending in the longer-term but presents a very low risk of reoffending in the period between now and the determination of her Partner visa application in a matter of months. The Tribunal considers that this conclusion is supported by the Applicant’s partner’s evidence which the Tribunal accepted that, since her time in immigration detention, the applicant has made frequent and regular online purchases and there have been no issues of the applicant being criminally dishonest with those transactions during a period of almost a year.
Conclusion: Primary Consideration A
The Tribunal has found that some of the Applicant’s offences were serious and the nature of the offences were that the Applicant committed seven crimes of dishonesty in order to gain benefit.
The Tribunal has found that if the Applicant were to reoffend, her offences would be likely to be further crimes of dishonesty and most likely attempting to deprive others of payment for goods sold to the Applicant.
The Tribunal has taken into consideration the principle that Australia has a low tolerance of any criminal conduct by visa applicants. The Tribunal has also considered that it is likely that the Applicant will remain in Australia until the proceedings relating to her application for a Partner visa are ultimately determined.
After giving thought to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration weighs in favour of refusal of the Applicant’s Bridging E visa application. The Tribunal considers that some of the Applicant’s conduct in the past was serious, if not particularly so, and that there is a very low likelihood that the Applicant will reoffend before her Partner visa application is determined.
The Tribunal attributes slight weight to the primary consideration of the protection of the Australian community in favour of refusal of the Applicant’s Bridging visa application.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa.
Neither party has argued that this consideration is relevant in the current matter and no issue arises on the material before the Tribunal. In these circumstances the Tribunal places no weight on this consideration.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 11.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation. While Doan involved consideration of paragraph 13.3(1) of Part C of Direction 65 and the present case involves consideration of paragraph 11.3(1) of Part B of Direction 79, there are no material differences between these two paragraphs.
In addition, the fact that Direction 79 is relevant to this case, rather than Direction 65, has no material bearing on this case. The differences between Directions 65 and 79 are primarily that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes. The Applicant has not harmed women or children in the past and there is no evidence that he will do so in the future.
In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.
Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.
However, in Doan I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 11.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).
Since my decision in Doan, the Federal Court, on 11 April 2019, handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are: FYBR v Minister for Home Affairs[2019] FCA 500 (“FYBR”); and DKXY v Minister for Home Affairs[2019] FCA 495 (“DKXY”).
In FYBR her Honour Perry J concluded at [42]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese; Afu and YNQY.
In DXKY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.
However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. The Tribunal has taken into account that Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. The Tribunal has also taken into account that Australia has a low tolerance of any criminal conduct by visa applicants.
Against these factors, in the present case the Tribunal does not consider that there is an unacceptable risk to the Australian community presented by the Applicant reoffending. In this case the Tribunal does not consider that visa refusal is appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be granted a visa.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place weight in the Applicant’s favour on the severe negative consequences of refusal of a Bridging visa on the Applicant’s partner: see paragraph 6.3(7) of the Direction.
Conclusion: Primary Consideration C
The Tribunal accepts that the Applicant breached the expectation of the community to abide by the law and that the community has a low tolerance for any criminal conduct by visa applicants who have only been in the community for a short period of time.
However, the Tribunal has found that there is very low risk to the Australian community presented by the Applicant residing in the community while she awaits the outcome of her Partner visa application. In addition, the Tribunal considers that the Australian community would place weight in the Applicant’s favour on the severe negative consequences of refusal of a Bridging visa on the Applicant’s Australian partner.
Overall, the Tribunal finds that the Australian community would consider the very low risk of future harm to the community is acceptable and that the Applicant should not be refused the grant of a Bridging visa so that she may await the ultimate outcome of her Partner visa application in the community with her Australian partner.
The Tribunal finds that this consideration weighs against refusal of a Bridging visa to the Applicant. The Tribunal places slight weight, in the Applicant’s favour, on the primary consideration of the expectations of the Australian community.
OTHER CONSIDERATIONS
Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
International non-refoulement obligations
Paragraph 12.1 of the Direction provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

As mentioned above, these proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the determination of her Partner visa application with her partner in the community, or whether she must await the outcome of her Partner visa application in detention.
As such, the outcome in these proceedings will have no bearing whatsoever on whether the Applicant will be returned to the United States of America in breach of Australia’s non-refoulement obligations.
In those circumstances, this consideration is not relevant to the present proceedings.
Impact on family members
Paragraph 12.2 of the Direction provides:
“Impact of visa refusal on immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
The Applicant has a de facto partner in Australia. Her partner is an Australian citizen.
If the Applicant is refused a Bridging visa, her partner would be deprived of living with the Applicant in Australia pending the outcome of her Partner visa application. This would have an ongoing significant adverse effect on the Applicant’s partner, both emotionally and financially.
The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on the Applicant
The Tribunal has also considered the effect of refusal of a Bridging visa on the Applicant. While this consideration is not listed in paragraph 12 of the Direction, the matters which can be taken account into account as other considerations are not limited to the matters listed in that paragraph. The Tribunal considers that refusal of a Bridging visa would have a significant negative effect on the Applicant.
If the Applicant is refused a Bridging visa, she would be deprived of living with her partner in Australia pending the outcome of her Partner visa application in circumstances where she has already been separated from her partner and in detention for almost a year.
The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on victims
Paragraph 12.3(1) of the Direction provides:
“Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;”
There is no direct evidence of the impact of a decision to grant a visa on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
Conclusion: should the power to refuse the Applicant a visa be exercised?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs slightly in favour of visa refusal in this case. The Tribunal has found that that there is a very low risk to the Australian community presented by the Applicant residing in the community while she awaits the outcome of her Partner visa application.
The Tribunal has found that the primary consideration of the expectations of the Australian community weighs slightly against visa refusal. The Tribunal has found that the considerations of impact on the Applicant and her partner each weigh significantly against visa refusal. The Tribunal has found that the Applicant and her partner will be significantly adversely affected if the Applicant is not granted a Bridging visa.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the slight weight I have attributed to the primary consideration of the protection of the Australian community is outweighed by all of the other relevant considerations in this case.
Ultimately, the relevant question in this case is whether the very low risk that the Applicant presents to the Australian community is unacceptable such as to prevent the Applicant from being allowed to await the outcome of her Partner visa application with her Australian partner in the community. Notwithstanding that I have found that there is some risk, however low, that the Applicant will be dishonest to others in order to gain a benefit, most likely by depriving others of payment for goods, at least temporarily, the Tribunal finds that the very low risk that the Applicant presents to the Australian community is acceptable in this case.
As mentioned above, the Tribunal is aware that the Respondent has sent the Applicant a Notice of Intention to Consider Refusal of her Partner visa application on the basis of section 501 of the Act. While the question in the current matter is ultimately whether the Applicant presents an unacceptable risk to the Australian community in the short term between now and the determination of her Partner visa application, the questions for a decision maker considering whether to refuse the Applicant a Partner visa under section 501 of the Act may be very different. For example, whereas in the current matter it is relevant to look at the risk of reoffending in the short-term between now and the determination of the applicant’s Partner visa application in some months, the question for a future decision maker in this regard is likely to be focused on the risk that the Applicant presents in the longer term and potentially if she were to remain here permanently. The point that I am making is that the outcome of these proceedings should not be determinative, one way or the other, of consideration of refusal of the applicant’s Partner visa application under section 501 of the Act. As I have mentioned previously, any future decision-maker considering refusal of the Applicant’s substantive visa application will have to make their own findings of fact, to apply the law and the Direction to the facts, and to reach their own conclusions as to whether the Applicant passes the character test and the exercise of the discretion to refuse the application under section 501 of the Act.
The Tribunal notes that it has also considered whether it would have exercised the discretion to refuse the Applicant a Bridging visa if it had accepted the Respondent’s post-hearing submissions on the operation of section 501F of the Act. The Tribunal has concluded that even if it had accepted that the Respondent submissions, it would have come to the same conclusion regarding the exercise of the discretion in section 501(1) of the Act. Indeed, if the Tribunal had accepted the Respondent’s submissions on the operation of section 501F of the Act, the considerations which weighed in favour of the applicant would be likely to be given more weight as the consequence of refusal would be significantly more detrimental to the Applicant and her partner.
The Tribunal has found that the Applicant does not pass the character test but has decided that the discretion to refuse the Applicant a Bridging visa should not be exercised.
The Tribunal finds that the Minister’s delegate’s decision, to refuse the Applicant’s application for a Bridging visa, should be set aside and that the matter be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised. The Tribunal considers that this is the preferable decision in this case.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised.

I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.............................[SGD]..........................................
Associate
Dated: 8 July 2019

Date of hearing:

1-3 July 2019

Solicitors for the Applicant:

Mr Frank Lanza

Lanza Legal

Solicitor for the Respondent:

Mr Zeng He

Clayton Utz Lawyers

ANNEXURE 1 - EXHIBIT REGISTER
File No       2019/2189................................................................................................................
Between     Vanessa O’Rourke ................................................................................ (Applicant)
And            Minister for Home Affairs................................................................... (Respondent)
Heard on    1 July 2019 (Hearing)
2 July 2019 (Hearing)
3 July 2019 (Telephone Directions Hearing)

At Brisbane .........................................................................................................................

Exhibit Number

Description of Evidence

WITNESS STATEMENTS

A1

Statement of the Applicant dated 29 April 2019

A2

Further Statement of the Applicant dated 25 June 2019

A3

Statement of Jason Waight dated 15 May 2019

A4

Statement of Corey Jenkins (undated)
- Also reproduced in S 501G Documents, pages 92-93 -

A5

Statement of Corinne Delaney dated 30 March 2019

A6

Combined letter of reference from various detainees (undated)

A7

Letter from Sinavaitu’u Sola dated 20 June 2019

G-DOCUMENTS

G1

S 501G Documents

OTHER MATERIAL

A8

Decision Record of Administrative Appeals Tribunal – Migration and Refugee Division dated 8 May 2019

A9

Visitor Log pertaining to Applicant dated 30 April 2019 – Department of Home Affairs

A10

Notice of Intended Marriage document dated 9 April 2018

A11

Civil Partnership Certificate dated 12 April 2019

A12

Letter from Anderson Fredericks Turner to Applicant attaching bundle of documents tendered during sentencing of Applicant

A13

Notice of Intention to Cancel Applicant’s Partner visa application dated 14 June 2019

A14

Mental Health Records obtained from IHMS (Various dates)

A15

Bundle of documents totalling 277 pages obtained from the Department of Home Affairs with title page dated 29 September 2017

[2019] AATA 1727

8 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Remedies

Jurisdiction

Statutory Construction

Exhibit Number	Description of Evidence
WITNESS STATEMENTS
A1	Statement of the Applicant dated 29 April 2019
A2	Further Statement of the Applicant dated 25 June 2019
A3	Statement of Jason Waight dated 15 May 2019
A4	Statement of Corey Jenkins (undated) - Also reproduced in S 501G Documents, pages 92-93 -
A5	Statement of Corinne Delaney dated 30 March 2019
A6	Combined letter of reference from various detainees (undated)
A7	Letter from Sinavaitu’u Sola dated 20 June 2019
G-DOCUMENTS
G1	S 501G Documents
OTHER MATERIAL
A8	Decision Record of Administrative Appeals Tribunal – Migration and Refugee Division dated 8 May 2019
A9	Visitor Log pertaining to Applicant dated 30 April 2019 – Department of Home Affairs
A10	Notice of Intended Marriage document dated 9 April 2018
A11	Civil Partnership Certificate dated 12 April 2019
A12	Letter from Anderson Fredericks Turner to Applicant attaching bundle of documents tendered during sentencing of Applicant
A13	Notice of Intention to Cancel Applicant’s Partner visa application dated 14 June 2019
A14	Mental Health Records obtained from IHMS (Various dates)
A15	Bundle of documents totalling 277 pages obtained from the Department of Home Affairs with title page dated 29 September 2017