PRHR v Minister for Immigration and Border Protection - [2017] AATA 2782

PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782 (22 December 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/6059
GENERAL DIVISION  )

Re: PRHR
Applicant

And: Minister for Immigration and Border Protection
Respondent

CORRIGENDUM TO DECISION [2017] AATA 2782

The Tribunal amends its decision of 22 December 2017 by:

at [11] in the second line deleting ‘and’ and inserting ‘an’;
at [13] in the second line inserting ‘call’ after ‘will’;
at [17] in the third line adding ‘y’ to ‘Count’;
at [19] in the eighth line after ‘Constable’ inserting ‘(DLSC)’;
at [42] in the fifth line, delete a zero so that the year reads ‘2012’;
at [48] in the fourth line, delete ‘‘the’ and insert ‘he’;
at [60] in the second line of paragraph (b) of the excerpt insert ‘not’ after ‘would’;
at [61] in the second line of paragraph (b)(ii) of the excerpt insert ‘(including a crime’ before ‘that’;
at [65] in the last line of the paragraph following the first excerpt of text insert ‘it’ after ‘cancel’;
at [69] in the fifth line delete the ellipsis and insert ‘107’;
at [76] in the first sentence insert ‘power’ after ‘”officer”’;
at [77] in the sixth line insert ‘in’ before ‘detention’;
at subheading A.1 which precedes [84] delete ‘PHRH’ and insert ‘PRHR’;
at [86] in the ninth line add ‘d’ to ‘concede’;
at [86] in the tenth line delete ‘and’ and insert ‘an’;
at [92] in the fourth line delete ‘or’ and insert ‘of’;
at [107] in the second paragraph of the excerpted text at the beginning of the paragraph after the quotation mark and before the quoted text insert ‘(6)’ and then indent the excerpted paragraph so it aligns with that prior to it;
at [117] in the third line of the excerpted text insert an ellipsis after ‘Punishment’ and insert an ellipsis followed by a closing parenthesis after ‘1984’;
at footnote 85 inserting ‘[2017]’ after the name of the case;
at [118] in the sixth line delete ‘doe’ and insert ‘do’;
at footnote 87 delete from and including the first bracketed ellipsis to and including the second bracketed ellipsis;
at [125] in the third line delete the ellipsis and insert ‘64’;
at [139] in the second line delete ‘is’ and insert ‘as’;
at [145] in the seventh line italicise ‘Commission’;
at [156] in the fifth line insert ‘as’ after ‘acted’;
at [159] in the first line insert ‘the’ after ‘Given that’;
at [164] in the first line insert ‘.4’ after ‘12’;
at [167] in the third line delete ‘his’ and insert ‘him’; and
at the appearances listed and in that shown for Solicitor for the Respondent delete ‘Meredith’ and insert ‘Melinda’.

.........................[sgd]........................................

S A Forgie

Division:General Division
File Number(s): 2017/6059
Re:PRHR
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:22 December 2017
Place:Melbourne

The Tribunal affirms the decision of the delegate of the respondent dated 3 October 2017 to refuse the applicant’s application for a Temporary Protection (Class XD) visa (TPV) under s 501(1) of the Migration Act.

........[sgd].............................................................

Deputy President S A Forgie

Catchwords

IMMIGRATION – decision refusing to grant protection visa – legal consequences of refusing protection visa a relevant consideration – decision affirmed

PRACTICE AND PROCEDURE – Direction 65 not consistent with the law since the enactment of s 197C of the Migration Act 1958 – exceeded power conferred by s 499 – Direction cannot be read as if an amendment had been made to remove or mitigate inconsistency – severance of inconsistency possible

Legislation

Acts Interpretation Act 1901 s 46

Crimes Act 1958 s 68

Criminal Procedure Act 2009 ss 254, 256

Migration Act 1958 ss 5, 5H, 5J, 30, 31, 35, 35A, 36, 65, 86, 189, 193, 194, 195A, 196, 197AB, 197AF, 197C, 198, 233D, 499, 500, 501, 501CA, 501E, 501K

Direction No.65

Cases

Alexandra Private GeriatricHospital Pty Ltd v Blewett(1984) 2 FCR 368; 56 ALR 265

BCR16 v Minister for Immigration 248 FCR 456; (2017) 248 FCR 456

Coco v R [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Griffiths v R (1977) 137 CLR 293; 15 ALR 1

Moloney v New Zealand [2006] FCA 438; 235 ALR 159

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299

Minister for Home Affairs v Tervonen [2008] FCAFC 24; (2008) 166 FCR 91; 245 ALR 710; 101 ALD 12

Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1; 307 ALR 49; 138 ALD 495

Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1; 292 ALR 243

R v Jerome and McMahon [1964] Qd R 595

R v Tonks [1963] VR 121

Re Fakauafusi and Minister for Immigration and Border Protection [2017] AATA 1017

Re Gray and Australian Securities and Investments Commission [2004] AATA 1234; (2004) 86 ALD 230

Re Jagroop and Minister for Immigration and Border Protection [2015] AATA 751; (2015) 67 AAR 288

Secondary Materials

Chambers 21^st Century Dictionary, 1999, reprinted 2004

REASONS FOR DECISION

Deputy President SA Forgie

The Refugee Review Tribunal (RRT) was satisfied on 10 June 2015 that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm in the form of torture by Sri Lankan authorities. It also found that the risk of harm faced by PRHR is one that he faces personally due to his particular role on the boat on which he travelled to Australia from Sri Lanka. PRHR’s particular situation is not one faced by the population generally.

On 3 October 2017, a delegate of the Minister for Immigration and Border Protection (Minister) refused PRHR’s[1] application for a Temporary Protection (Class XD) visa (TPV) under s 501(1) of the Migration Act 1958 (Migration Act). The delegate did so on the basis that PRHR had not passed the character test under s 501(6) because he had been convicted of one or more sexually based offences involving a child within the meaning of s 501(6)(e). There was no dispute between the parties that PRHR had not passed it because he had been convicted of the offence of make/produce child pornography and of knowingly possess child pornography. On 4 May 2017 and on appeal from the Magistrates’ Court, Judge Hicks of the County Court of Victoria sentenced PRHR to serve a Community Corrections Order (CCO) for a period of 18 months, to undertake 100 hours of unpaid community work. PRHR was required to undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager and to participate in programs and/or courses addressing factors relating to his offending behaviour as directed. As a result of his conviction, PRHR was automatically placed on the Sex Offender’s Register for a period of eight years. The Department of Immigration and Border Protection (Department) advised PRHR of the decision to refuse his application for a visa in a letter dated 5 August 2017 and he received it by email on the same day.

[1] Name suppressed to accommodate s 501K of the Migration Act 1958.

PRHR has applied for review of the Minister’s decision. I have decided to affirm the decision and now give my reasons.

BACKGROUND

In this section of my reasons, I will set out the facts that are either not in dispute or that I have found after considering the evidence given both orally and in writing.

Early life

PRHR was born in a town in Sri Lanka. His mother has worked in Saudi Arabia as a housemaid since he was three years of age and he has had little contact with her. His father, who worked in Sri Lanka, died over ten years ago. PRHR’s two sisters are some five or six years older than he and he spent some of his childhood living in their houses. At other times, he lived with his maternal grandmother, an aunt or with the family of a close friend. He rarely lived with his father whom he described as a political activist who was always drinking and as not looking after him at all.

PRHR began smoking cannabis when he was approximately 15 years of age and living at his sister’s house. He would smoke several times a week but, within a year, that increased to a daily habit. His habit continued until he came to Australia where, on his statement made to Mr Warren Simmons, a Consulting Psychologist,[2] I find that he has smoked cannabis on only one occasion.
[2] Supplementary G Documents (SG Documents); SG33 at 319

PRHR began to drink alcohol when he was 18 years of age. He liked to drink spirits while playing drums and did so on a weekly basis when his finances allowed him to do so. When he came to Australia, PRHR continued to drink with friends with the same regularity as before.

PRHR was introduced to methamphetamines, or ice, in May 2015 by a woman whom he knew. He smoked ice up to three times each week but did not know how much he was smoking. He enjoyed the experience until the day when he smoked ice and cannabis and drank alcohol and felt that his heart was stopping and that someone was controlling his body. PRHR found the experience so unpleasant that he has used neither amphetamines nor cannabis again.

Failure to pass the character test

In view of his convictions for sexually based offences involving a child, PRHR does not pass the character test in view of s 501(6)(e). There is, however, another basis on which he does not pass the character test and it arises out of his activities on the vessel on which he travelled to Australia from Sri Lanka in May 2012 with Tamil passengers. He arrived on Christmas Island on 13 June 2012 and later, on 16 October 2012, was granted a Bridging Visa E.
On the basis of his oral evidence, I find that PRHR had acted as a guard on board a vessel in Sri Lanka for ten days. He was paid for his work over those ten days. During that period, he became aware that the boat was to take Tamil passengers from Sri Lanka illegally. On the basis of the hearing before me, I find that PRHR had asked whether he could travel on the boat as well. He wanted to leave Sri Lanka in view of trouble that he had encountered in the past. He was given permission and was counted as a member of the crew when the Sri Lankan Navy went on board to check the vessel. The Tamils were located in an area below the ice storage area and, on the basis of PRHR’s evidence, I find that members of the Navy were paid to ignore those passengers. The RRT found, and PRHR repeated at the hearing, that PRHR had helped to cook the food and, with others, to steer the boat.[3]
[3] G Documents; G4 at 109

At the hearing, Mr Aleksov conceded that PRHR’s role on the vessel would lead to a reasonable suspicion that he has been involved in conduct constituting and offence under s 233D of the Migration Act. If that is the case, PRHR would not pass the character test because s 501(6)(ba) would apply. Section 233D(1) of the Migration Act provides that, subject to a qualification in s 233D(2) that does not apply:
“A person (the first person) commits an offence if:
(a)the first person provides material support or resources to another person or an organisation (the receiver); and
(b)the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty:Imprisonment for 10 years or 1,000 penalty units, or both.”

I accept Mr Aleksov’s concession and am satisfied that would be so on the basis of PRHR’s oral evidence at the hearing before me. That means that he does not pass the character test on the ground set out in s 501(6)(ba) as well as that set out in s 501(6)(e).

The offences committed in Australia

The offences arose out of events in a motel room between PRHR, who was then 33 years of age, and a girl, whom I will “X”, in a motel room. She was then 13 years of age and under the guardianship of the Department of Health and Human Services or a Ward of the State. Those events culminated in his using his mobile telephone to video record her performing a striptease in front of him and in his using the same telephone to take pictures of the two of them kissing. PRHR was originally charged with four offences but two were withdrawn in the proceedings before the Magistrates’ Court of Victoria. He pleaded guilty to the other two and was sentenced in respect of both. On appeal, the sentence was set aside and he was sentenced as I have set out above.

A. Relevance of offences charged but withdrawn

I note that the Minister has referred to the sentence originally imposed by the magistrate and to his comments in the Statement of Issues, Facts and Contentions (SIFC) lodged on his behalf. I will not set either of them out for they have been withdrawn. I explained the reasons for my adopting this view in Re Fakauafusi and Minister for Immigration and Border Protection[4] and adopt those reasons.
[4] [2017] AATA 1017 at [44]-[53]

I would add that the starting point is the principle that, apart from the situation in which a person pleads guilty to an offence with which he or she is charged:
“… there is no way of establishing such guilt under our system except by a fair trial and, until they are proven guilty in that way, people are presumed innocent.”[5]
[5] Moloney v New Zealand [2006] FCA 438; 235 ALR 159 at [89]; 179 per Madwick J

A plea of guilty is a formal confession of the elements of the offence alleged and for which a person has been charged but it is not a conviction. A person is not convicted of an offence until a court accepts that plea of guilty. It may do so by formally entering the plea on the record of the court but it may also do so by acting in a way that indicates its acceptance of the plea amounting to a determination of guilt by the court. Imposing punishment or discharging a person on his own recognisance are two ways in which that indication could be given.[6] If therefore, there is no finding of guilt either after a trial or following a confession of guilt before trial, there can be no conviction. There can be no trial and nothing to which to enter a plea of guilty if no charge has been laid or, if laid, has been withdrawn. Therefore, the fact that a charge has been laid and later withdrawn is no indication of a person’s having committed, or not committed the offence.
[6] See R v Tonks [1963] VR 121 at 127-128; R v Jerome and McMahon [1964] Qd R 595 at 604 per Gibbs J and Griffiths v R (1977) 137 CLR 293; 15 ALR 1 at 318; 23 per Jacobs J

The sentence imposed by the Magistrates’ Court and later overturned on appeal is also of no evidentiary weight in this matter. When a person, who has been convicted of an offence by a Magistrate in the Magistrates’ Court, he or she may appeal to the Count Court against either the conviction and sentence imposed or the sentence alone.[7] An appeal is conducted as a rehearing and, under s 256(2)(a) of the Criminal Procedure Act 2009 (CP Act), the County Court must set aside the sentence of the Magistrates’ Court. Having done that, it may impose any sentence which it considers appropriate and that the Magistrates’ Court imposed or could have imposed[8] and may backdate it to a date not earlier than the date of the sentence imposed by the Magistrates’ Court and set aside on appeal.
[7] Criminal Procedure Act 2009; s 254(1)
[8] CP Act; s 256(2)(b)

It follows that the sentence imposed by the Magistrates’ Court and any comments made by the Magistrate when imposing that sentence are not relevant once an appeal from that sentence has been determined by the County Court.

B. The circumstances of the offences

I do not have the remarks of Judge Hicks, who allowed PRHR’s appeal against the one month’s term of imprisonment imposed by the Magistrates’ Court. PRHR has given evidence about the offence in two statements dated 14 June 2017 and 27 November 2017 as well as in his oral evidence. I also have statements written by two police officers, Constable Hamill and Constable Staudt, who attended at the motel room on 5 February 2016 where the photographs were taken and video made on PRHR’s mobile phone.[9] Each of the police officers spoke with PRHR but Constable Hamill also spoke with X. On the same day, Detective Leading Senior Constable Eden was notified of the events at the motel. She spoke with X, who told her that she had not had any sexual involvement with PRHR. DLSC Eden interviewed X on 12 February 2016 and went on to make a statement as the informant. Her statement was included in the Preliminary Brief.
[9] SG Documents; SG32 at 268-272 and 273 to 278

DLSC Eden’s statement of alleged facts and those of PRHR are not entirely consistent with each other. There are some inconsistencies between the events recounted in statements of PRHR and those made by Constable Hamill and Constable Staub as well as with X’s record of interview. The statements made by PRHR also contain inconsistencies. Some inconsistencies are to be expected because people’s recollections differ. Therefore, regard is also had to objective evidence in assessing evidence based on recollections.

Some of the inconsistencies are small. I refer, for example, to PRHR’s statement on 14 June 2017 that it was X, and not he, who suggested that they go to see a movie after they had initially met at a shopping centre and smoked cigarettes. X said in her interview that he had made the suggestion. A greater inconsistency lies in the events after PRHR and his friend, together with X and her friend whom they had also met at the shopping centre left. PRHR said in his statement dated 14 June 2017 that X asked whether she could go back to the house where he and his friend lived as she did not have anywhere to go. He and his friend agreed, he said, and she stayed overnight in the lounge room. This is inconsistent with his statement recorded in the Preliminary Brief to the effect that he denied taking X to his house.

The next morning he dropped her off at the house where she told him she was staying. A few days later, she called and told him that someone had attacked her at that house and she could not stay there. PRHR said in his statement of 14 June 2017 that he had asked a friend to drive him to pick X up. When they picked X up as well as her friend, X asked them whether they could provide accommodation for the night. As they could not take them back to the house as the other residents did not like people staying over too often, they went to a motel. On the way, his friend purchased alcohol for them to drink and then paid for two motel rooms as he did not like to drive after drinking. PRHR said that he passed out as he drank a lot.

In the morning, PRHR said, the girls were distressed because they thought that there were police at the motel and that they were looking for them. As they were distressed, his friend paid for a second night so that they could stay at the motel and he and his friend left for the day. PRHR said that he left to meet friends from Adelaide and returned to the motel some time after 6:30pm or 7:00 pm to talk to the girls to see why they were hiding from the police. His friend had returned earlier and had bought them food and taken them shopping for clothes. Soon after he returned, the police came to the door.

X’s recounted a version of events that began with the same encounter at the shopping centre and a decision to leave after they decided not to see a film. On 12 February 2016, X told DLSC Eden that, at the cinema, they met other friends of PRHR. X and her friend went to the carpark with PRHR and his friends but her friend did not go with them. They went to a bottle shop and bought cigarettes and vodka and then to a motel where PRHR and his friend booked a room. Five men and X were drinking and smoking in the room. They left the rook and went back to PRHR’s house. Nothing sexual happened and she slept on the couch. PRHR took her home the next morning. A couple of days later, X telephoned PRHR using her friend’s phone. PRHR had keyed his number into her friend’s phone. PRHR and his friend picked them up and they stayed overnight at the motel.

The next day, they went to McDonald’s and then PRHR’s friend bought X and her friend dresses and shoes. PRHR went to work. X, her friend and PRHR’s friend went back to the motel. They saw the police and X and her friend thought that they were the subject of police interest. They hid and then her friend asked PRHR’s friend to take her home. X stayed with PRHR and was smoking in the bathroom when the police knocked at the door.

The inconsistency of concern in the recollections of X and of PRHR to this point centre on the events preceding X’s going to his house and on the booking of two nights at the motel room. In cross-examination, PRHR did not agree that they had gone to a motel before going to the house where he lived. His answer regarding the booking of the rooms was inconclusive. He acknowledged that he had intended to stay for one night but the second night seemed to be as a consequence of the girls’ concern about the police presence. The Tax Invoice given to his friend by the motel records,[10] however, that the two nights in two rooms were booked at the same time and not as a result of events.
[10] SG Documents; SG32 at 236

In the context of the events with which PRHR was convicted, these inconsistencies are of little consequence but they are part of the backdrop to what is an important inconsistency in the evidence. That inconsistency relates to PRHRs’ understanding of X’s age. He is recorded by Constable Staudt as telling him that he thought that X was 14 or 15. When asked whether X was his girlfriend, PRHR was noted as replying: “No, she is too young, but maybe in a few years.”[11] That conversation took place in the motel room where PRHR and X were located where Constable Staudt and Constable Hamill found them. Constable Staudt’s statement says that he had the conversation with PRHR while X and Constable Hamill went to another motel room to collect the rest of her clothes.
[11] SG Documents; SG32 at 276

In his oral evidence, PRHR said that he could not remember whether he had said that X was too young to be his girlfriend but maybe in a few years and he could not recall whether Constable Staudt had asked him how old she was. PRHR said that he was drunk and so could not remember. When asked whether he had told Constable Staudt whether he had said that he thought X was 14 or 15 years of age, PRHR replied: “Yes, maybe if I have told like that, maybe true. But I can’t remember exactly what I said.”[12]
[12] Transcript at 71

Constable Hamill also noted the conversation he had with PRHR while Constable Staudt was speaking with X. As noted by Constable Hamill, PRHR said that X had told him that she was 14 or 15 years of age.[13]
[13] SG Documents; SG32 at 270

In a subsequent statement that he made to DLSC Eden on 17 February 2016 through an interpreter[14], PRHR said that he had asked her for identification when they met at a shopping centre and she asked him for a cigarette. PRHR said that he had done that as he did not believe her when she told him that she was 18 years of age and believed that she was older.[15]
[14] Transcript at 72
[15] SG Documents; SG32 at 231

In his statement dated 14 June 2017, PRHR stated that two girls had approached him and his friend at a shopping centre and had asked for a cigarette. He had thought:
“… that she looked a bit young so I asked her how old she was. She managed to not answer the question directly, however she spoke and carried herself with confidence. This led me to believe that she was at least 18 years old. Satisfied that she was of a legal age to smoke, I gave her a cigarette.”[16]
[16] G Documents; G4 at 82

His statement made on 17 November 2017 is to the same effect regarding X’s age. PRHR said:
“I miscalculated the age of the victim and I was heavily intoxicated to the point where I did not remember the incident occurring or me videotaping until the police officer told me that the girl was underage and showed me a tiny bit of the video. At this point I had a vague recollection of the event so I told the police that I accept responsibility. I am deeply remorseful of the incident. I am ashamed and often wonder how I could have done such a thing no matter how intoxicated I was.
My solicitor tells me that I had allegedly told the policemen, at the motel, that I was told by the victim that she was 14 or 15 years old. This is not true, the policemen asked me questions without an interpreter. I did however understand the question when they asked me how old I thought the girl was, I told them that I did not know for sure and one of them said that she was very young. I was surprised as to how young she was, I felt ashamed. At no point did I say she had told me she was 14 or 15, if she had said to me, I would have known it was inappropriate to give her a cigarette, carry on a friendship or to drink in her presence.
I thought she was a bit young when I first met her, that is why I asked her age, I did suspect she may have been younger than 18 when I first met her. However, she did avoid the question, and I deduced from the way she spoke and carried herself confidently that she had to be at least 18. I would not have given her a cigarette if I knew that she was 14 or 15 years old.”[17]
[17] Exhibit A at [19]-[21]

Constable Hamill’s statement regarding his conversation with X on 5 February record his asking her how she and PRHR had met. He stated that she had told him:
“He was at the … shops the other day and I asked him for a smoke, he was like ‘how old are you’, so I told him I was 13 and he started telling me off about how I shouldn’t be smoking at my age, and I was like, it’s my choice are you going to give me a smoke?
I/S, ‘So what happened after that’?
S/S ‘He gave me a smoke anyway and after we finished smoking he asked if we wanted to go see a movie, he’s nice.’”[18]
[18] SG Documents; SG32 at 271

DLSC Eden’s notes of her interview of X on 12 February 2016 record X’s statement that PRHR had asked her old she was when she had approached him and his friend and asked for a smoke. She said that she had told him “13 going on 14”.[19]
[19] SG Documents; SG32 at 215

Having regard to all of the evidence on this issue, I find that PRHR either knew that X was 13 years of age or 13 years going on 14. That was what she said that she had told him when she gave her statement to the police. It is consistent with the age of 14 or 15 that Constable Hamill and Constable Staudt recorded as PRHR’s understanding of her age when they talked to him separately at the motel room. It is also consistent with the age she appears in the photographs of X and PRHR that appear in the SG Documents.[20] Since those initial conversations in the motel room, PRHR has maintained that he thought that X was older than 18 years but his doing so is both inconsistent with what he is recorded as telling the Constables and with his asking X about her age in the first place. He asked her because he thought that she looked a “bit young” to be smoking. His evidence is that she did not answer his question directly but he was led to believe that she was at least 18 years of age by the way in which she spoke and carried herself. His conclusion is inconsistent with his initial assessment that she looked a “bit young” to be smoking.
[20] SG Documents; SG32 at 239-242

With regard to the offences themselves, PRHR said in his statement of 14 June 2017 that he does not recall X performing a strip-tease for him or of his recording it on his telephone or of his kissing her and taking “selfies” of them doing so. He said in his statement of 27 November 2017 that he could vaguely recalled its having happened when he was shown the pictures but he was not sure if it was his memory or what he thought happened. X told DLSC Eden that she recalled dancing for PRHR when she was drunk but did not remember pulling her underwear down.[21]
[21] SG Documents; SG32 at 216

PRHR did have a memory of events on 17 February 2016 when he was interviewed in respect of the offences. In relation to the video, PRHR is recorded as having:
“… stated that the Complainant put some music on and started to dance. The Accused stated that the Complainant asked him to video her dancing. He stated that he videoed her with her permission and that he didn’t know that she was 13 years old. The Accused further stated that he was drunk at the time the video was made. The Accused also said that it was not his fault, it was what the Complainant did. The Complainant was the one who danced, he used some bad words but her behaviour is her fault and that he can’t take the blame for that.”[22]
[22] SG Documents; SG32 at 231

PRHR agreed that the video footage shows X dancing in her underpants and singlet top and that he is heard to say “show me your pussy”.[23]
[23] Transcript at 74

Offences committed in Sri Lanka in 2002

The evidence regarding offences which PRHR has committed in Sri Lanka is not particularly clear. When the RRT heard PRHR’s application for review of a decision refusing him a protection visa, it set out five offences with which he had been charged. Those offences arose out of events that had occurred in 2002 and were:
“· Assaulting a UNP Minister of the Sri Lankan Parliament;
·Theft of a firearm from a Sri Lankan government official;
·Extortion from persons inside a bus;
·Stealing goods inside a shop;
·Attacking a supporter of the ruling PA party.”[24]
[24] G Documents; G4 at 105

The RRT found that PRHR had been imprisoned for a term of 15 months for some of the charges but that the charge of stealing goods remained outstanding. PRHR also served a further two months imprisonment and paid a fine of 15,000 rupees and was released on bail but with the charge unresolved.

The RRT’s findings are consistent with the Statutory Declaration made by PRHR on 31 October 2012[25] and a further Statutory Declaration made on the same day.[26] The second Statutory Declaration included an Interpreter’s Declaration to the effect that the interpreter had accurately and completely interpreted the contents of the declaration to PRHR who had signed it. In both, PRHR stated that he had been falsely accused and charged with these offences. In one, he had said that he had been charged with and convicted of the offences. In the other, which contained the Interpreter’s Declaration, PRHR said that he had been charged with the offences. In his statement dated 11 December 2017, PRHR said that he had not been convicted of the offences and that he had told the RRT that.[27]

[25] G Documents; G4 at 76

[26] G Documents; G4 at 77-78

[27] Exhibit B at [4]

PRHR acknowledged that he had physically assaulted an UNP Minister of the Sri Lankan Parliament, Neomal Perera, but stated that it was not intentional and clearly an accident. He has referred to the events leading up to the charges in two of his three statements and in oral evidence. In one of his statements dated 31 October 2012, PRHR described events that had happened in 20012. He said that he and his family had been ardent UNP supporters. The UNP had been successful in elections in the past but had lost the seat. In 2002, PRHR supported a particular candidate who was standing for the UNP, Shantha Abeysekara, in the parliamentary elections. Neomal Perera was also a member of the UNP. PRHR said that there was a dispute between the two candidates. He became involved in a brawl and, in the heat of the moment, physically assaulted Neomal Perera.[28]
[28] G Documents; G4 at 77-78

In his statement dated 27 November 2017, PRHR described himself as being in the wrong place at the wrong time and forced to defend himself. He described the events in greater detail:
“7. The first incident happened in 2002. A potential UNP nominee by the name of Newmal Perrara was scheduled to speak at a UNP meeting/rally near the Chillaw police Station. I heard about this meeting through posters and also through my involvement with the UNP. I decided to attend the meeting to see what he had to say even though, at the time I thought Santha Abeysekara would be a better candidate.
8.I thought Santha would be better as a lot of my friends supported them. I knew that UNP associated with Santha as my close friends supported him. However, I did not think that I would be attacked for being at Newmal’s rally as I was to see what he had to say.
9.When I got to the meeting, I saw that there was an elevated stage/platform where Newmal would be speaking from. Being a UNP guy, I stood to the right of the stage near the stairs.
10.A little while into Newmal’s speech, Santha and some of his supporters arrived and started yelling and throwing stones onto the stage. People started yelling at each other and fighting. As the stones started flying Newmal and his bodyguards came off the stage and down the stairs.
11. Newmal and his bodyguards came off the stage and towards me; they may have mistakenly thought, that I was throwing stones along with the other Abeysekara supporters. The bodyguards came at me to attack me, I picked up a pole lying on the ground and hit them back to defend myself.
12.I believe the bodyguards, all being UNP people from the area, would have recognised me as a friend of Santha supporters and thought that I was there to cause trouble. I now realise that I should not have hit them back and either run away or taken the berating. I would never again intentionally place myself in a situation where political violence or any other form of violence is likely to occur.”[29]
[29] Exhibit A at [7]-[12]

In his oral evidence, PRHR confirmed that he had no documents about the charges and that he thought that one charge remained outstanding. Whatever the status of the charges, I accept PRHR’s description of events as he described them in his statement of 27 November 2017. I accept that they occurred in the context of a political rally. On his own description of them, the charge of shop stealing is unresolved and he remains on bail regarding it.

Events in which PRHR involved in 2005 and 2006

In his statement of 27 November 2017, PRHR described a second series of incidents that had happened during elections that took place in Sri Lanka in 2005:
“… Supporters of politicians become violent in Sri Lanka during election time. That’s how politics worked during election time in Sri Lanka. They attacked people who helped in the campaigns of their opponents.
On each occasion, I was spotted by supporters of opposing politicians and attacked. They may have remembered me if I did on one or two occasions fight back and on one occasion I may have fought back with a metal rod, but I do not remember this incident clearly.”[30]
[30] Exhibit A at [13]-[14]

He also spoke of other incidents:
“I remember having to run away or fight back on a few occasions when I was targeted, by supporters of Jagath Samantha and Sanath Nishantha, including the time in 2006 when I was stabbed with a knife.”[31]
[31] Exhibit A at [13]
PRHR gave further information about the stabbing incident to the RRT which had accepted that he was stabbed with a knife on his left hand and right shoulder by Samantha when PRHR, and others, were in front of his, Samantha’s, house. The RRT found that PRHR had cut three or four of his opponents before himself being cut. In his statement dated 11 December 2017, he expanded on what had happened on that occasion but added that he did not remember the details clearly:
“a. I was drinking at a friend’s house close to Jagath Samantha’s house. As a group, my friends decided to go down to Jagath’s house, I went with them. They may have had the intention to cause a disturbance and yell at the house. I do not recall discussing why we were going there.
b.When we got there, there was a big argument and things got heated, people started fighting and some shots were fired (I believe into the air) by Jagath’s people. Then everyone dispersed.
c.I did not take a weapon with me. I did not take a sword with me. I explained at the RRT hearing that I did not take a weapon with me but at one stage there was a sword.
d.It was when everyone dispersed and I was surrounded by four or five people I remember carrying the sword. It may have fallen out of someone’s hand and I may have picked it up.
e.As I was surrounded by four or five people, I swung the sword at them. At the time I was doing it so I could escape. I may have cut two or three people when I was swinging it. I don’t recall the incident clearly, but I do remember being struck on the band and dropping the sword quite quickly. I was then stabbed and cut with either a knife or a sword or three times. I managed to somehow run away and save my life.”[32]
[32] Exhibit B at [6]

In his oral evidence, PRHR explained that he could not remember whether the sword was on the ground or whether he had picked it up from the ground or from one of the four or five people surrounding him. He said that those four or five people had attacked him with the sword and `the was then waving the sword this way and that in order to safeguard himself. PRHR said that he did not know how many people were injured or cut. He could not remember exactly what happened and who cut whom first because he was drunk at the time. He could not tell anymore.

Ms Jackson asked PRHR why he had mentioned only his being stabbed with a knife when he made his statement dated 17 November 2017 and did not mention his cutting others. He replied that he could not remember whether it was a knife or a sword. He is not very clear about the events but he can remember that the others were attacking him with swords and he grabbed, he thinks, one of the swords to start protecting himself and attacking them. When Ms Jackson put to him that he had not acted in self-defence but had gone to the house knowing that there would be violence and to attack people, PRHR replied:
“Yes I went there to consume liquor and when I was drunk this happen and then to protect myself I would have done that.”[33]
[33] Transcript at 45

Again, PRHR’s memory is uncertain and there is variation among his statements. They are not variations that are inconsequential for it is one thing for a person to say that he or she was stabbed with a knife and another to say that he or she was involved in circumstances in which he or she inflicted cuts on other people and then was himself or herself cut. For all that, I find on the evidence that PRHR has given that he drank with friends, became intoxicated, accompanied them to the house of a supporter of a political candidate whom he did not support, became involved in a brawl and used a sword to cut other people with. On his own evidence, he cut other people before he himself was cut.

Australia’s protection obligations

In its decision made on 10 June 2015, the RRT remitted PRHR’s application for a protection visa with a direction that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

In reaching that decision, the RRT considered that there was a real chance or risk that PRHR would be considered to have breached s 45c of the Sri Lankan Immigrants and Emigrants Act (I&E Act). In so far as it is relevant in this case, that section provides:
“(1) Any person, who –
(a)organizes one or more persons to leave Sri Lanka in contravention of the provisions of this Act; or
(b)attempts or does any act preparatory to, or aids and abets any person to, so organize under paragraph (a), shall be guilty of an offence.
(2)Any person guilty of an offence under subsection (1) shall, upon conviction by a Magistrate, be liable to imprisonment of either description for a term not less than one year and not more than five years.
(3)In this section, the expression ‘organize’, with its grammatical variations, includes –
(a)…
(b)…
(c)…
(d)the transportation of persons by sea, land or any other manner without obtaining valid travel documents;
(e)…”

The RRT also considered that:
“… there is a real risk the Sri Lanka will identify the applicant as someone who can provide them with further information of people smuggling operations in Sri Lanka, given the applicant’s role in the smuggling operation which brought him to Australia. I find there is a real risk that the authorities will consider the applicant had an organisational role in the smuggling himself because of his profile as a crew member and guard, particularly in the light that his name was given to the Sri Lankan navy as a crew member. In view of the available country information and DFAT’s report I am satisfied there is a real risk of the applicant being subjected to torture to extract information from him.”[34]
[34] G Documents; G4 at 110-111
VISAS: REFUSAL, CANCELLATION AND CONSEQUENCES
Subject to the terms of the Migration Act, the Minister may grant a non-citizen[35] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[36] There are two kinds of visa; a permanent visa or a temporary visa.[37] Within those two kinds, there may be various classes of visa. Some are prescribed by the Migration Regulations 1994 (Regulations) and others are provided for in the Act.[38] Section 35A, for example, provides that a protection visa is a class of visa.
[35] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[36] Migration Act; ss 5 and 29(1)
[37] Migration Act; s 30
[38] Migration Act; s 31

Prescribed criteria that must be satisfied for the grant of a protection visa

The Regulations prescribe the criteria that a person must meet before the Minister or his delegate may issue a visa to him or her.[39] For protection visas, the criteria are those set out in s 36 together with any prescribed in the Regulations.[40] An applicant for a protection visa must satisfy both of the criteria in ss 36(1B) and (1C) and at least one of the criteria in s 36(2).
[39] Migration Act; s 31(3)
[40] Migration Act; s 35(6)

A. Criteria related to security and criminal convictions

Sections 36(1B) and (1C) provide:
“(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”

B. Criteria related to protection obligations

Putting aside a non-citizen who is a family member of a person who is mentioned in ss 36(2)(a) and (aa) and who holds a protection visa, Section 36(2) of the Migration Act sets out the two ways in which protection obligations arise. They arise in ss 36(2)(a) and (aa):
“A criterion for a protection visa is that the applicant for the visa is:
(a)A non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
(b) …
(c) …”

Expanding on s 36(2)(a), protection obligations arise because the person is a “refugee”. A “refugee” is defined in s 5H. In essence, a person is a refugee if he or she is outside the country of his or her nationality, or country of his or former habitual residence if he is she is without nationality, “… and owing to a well-founded fear of persecution …” is “unable or unwilling to avail himself or herself of the protection of that country” of his her nationality or “is unable or unwilling to return to it” where it was the country of his or her habitual place of residence. The expression “well-founded fear of persecution” is expanded upon in s 5J.

The two elements of the concept of a “real risk that the non-citizen will suffer significant harm” expressed in s 36(2)(aa) are developed in ss 36(2A) and (2B). The first is the element of “significant harm”, which is explained in s 36(2A):
“A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.”

The second element is that of a “real risk that the non-citizen will suffer significant harm”, which is explained in s 36(2B):
“However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”

Section 36(2C) is also relevant in considering the criterion set out in s 36(2)(aa):
“A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a)the Minister has serious reasons for considering that:
(i)the non-citizen has committed a crime against peace, a war crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non-citizen committed a serious non-political crime before entering Australia; or
(iii)the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b)the Minister considers, on reasonable grounds, that:
(i)the non-citizen is a danger to Australia’s security; or
(ii)the non-citizen, having been convicted by a final judgment of a particularly serious crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.”
Section 36(3) is also concerned with the circumstances in which Australia is taken not to have protection obligations in respect of a non-citizen. They arise if the non-citizen has not taken all reasonable steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right is expressed, any country apart from Australia. Sections 36(4), (5) and (5A) qualify the circumstances set out in s 36(3).

Extent of Minister’s obligation to make decision granting or refusing valid application for a visa

Putting aside situations in which the Minister has determined the maximum number of visas of a class or classes that may be granted in a financial year[41] and those in which the Minister has determined that processing of visa applications of a particular class or classes is to be suspended,[42] s 65 sets out the Ministerial obligations after considering a valid application. If the Minister is “not being prevented” by certain provisions of the Migration Act, including s 501,[43] the Minister must grant a visa if satisfied that all of the criteria prescribed under the legislation or Regulations have been satisfied. If not so satisfied, the Minister must refuse the visa.[44]

Refusal (or cancellation) of visa on character grounds

[41] Migration Act; s 86

[42] Migration Act; s 84

[43] Migration Act; s 65(1)(a)(iii)

[44] Migration Act; s 65(1)

A.Summary of obligation to refuse or cancel a visa under s 501

Section 65(1)(a)(iii) refers to the situation in which “the grant of the visa is not prevented by section … 501 (special power to refuse or cancel) …” as if that situation arose in a way that is out of the Minister’s control, that is not always the case. Section 501, however, has more than one aspect. Section 501(3A), for example, is concerned with a situation that arises out of the Minister’s control. It obliges the Minister to cancel a visa granted to a person if satisfied that he or she does not pass the character test either because of having a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(6)(e), which relates to his or her having been convicted of one or more sexually based offences involving a child, or within the meaning of ss 501(7)(a), (b) or (c), which relate to a person’s having been sentenced to death, life imprisonment or to a term of imprisonment of 12 months or more.[45] Although the Minister does not have any discretion in this situation, s 501CA sets out the circumstances in which the cancellation decision may be revoked. Section 501CA(4) confers a discretionary power to revoke the cancellation decision either if satisfied that the person passes the character test or that there is another reason why the decision should be revoked.
[45] Migration Act; s 501(3A)

The other powers to refuse or cancel a visa under s 501 are discretionary powers from the outset. Section 501(1) of the Migration Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:Character test is defined by subsection (6).”

The Minister may also refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[46] That is a power that must be exercised by the Minister personally.[47] If a person already holds a visa, the Minister may cancel if:
“(a) the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”[48]

[46] Migration Act; s 501(3)

[47] Migration Act; s 501(4)

[48] Migration Act; s 501(2)

B. Character test

The character test is set out in s 501(6). It sets out a number of circumstances in which Only s 501(6)(e) is relevant in this case:
“For the purposes of this section, a person does not pass the character test if:
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge proved for such an offence, even if the person was discharged without a conviction; …”

Section 501(1) is drafted in discretionary terms in that the Minister “may” refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.[49]
[49] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed

C. Ministerial Direction

In the case of a discretionary decision of the sort provided for in s 500(1), s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[50] Those directions must not be inconsistent with the Act or the Regulations made under it.[51] The person or body to whom the directions are given must comply with them.[52] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 65”.
[50] Migration Act; s 499(1)
[51] Migration Act; s 499(2)
[52] Migration Act; s 499(2A)

C.1 Status of Direction No. 65

During the course of the hearing, submissions were made regarding paragraph 12.1, and particularly paragraphs 12.1(2) and (6) of Direction No. 65 in light of various Federal Court authorities that have considered the place of Australia’s non-refoulement obligations in deciding whether to refuse a visa application or to cancel a visa already held by a person. As appears at [….] below, I have decided that the last sentence of each of paragraphs 12.1(2) and (6) is not consistent with the law as interpreted and applied by the Federal Court. On the understanding that might be my view, the parties made further written submissions regarding those two paragraphs and Direction No. 65 more generally. I have considered those submissions below and have concluded that I will have regard to Direction No. 65 on the basis that those sentences have been omitted. My reasons are also set out below.
C.2 Statement of objectives in Direction No. 65

Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[53]
[53] Direction No. 65 at [6.1(1)]

The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”

Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”

Differing considerations are prescribed in each Part. Regardless of those differences, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker when considering whether to cancel a visa, refuse an application for a visa or when considering whether the mandatory cancellation of a visa will be revoked. Decision-makers must take into account the primary and other considerations relevant to the individual case.[54] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[54] Direction No. 65 at [8(1)]

In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[55] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal … of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[56]
[55] Direction No. 65 at [8(2)]
[56] Direction No. 65 at [8(4)] and [8(5)]

Part B of Direction No. 65 applies to a decision whether to refuse an application for a visa. I will expand on these later in these reasons but, in summary, the primary considerations are threefold:
“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.”[57]
[57] Direction No. 65 at [11(1)]

The secondary criteria:
“… include (but are not limited to):
a)        International non-refoulment obligations;
b)        Impact on family members;
c)        Impact on victims;
d)        Impact on Australian business interests.”

Direction No. 65 expands upon each of these criteria and I return to it later in these reasons.

Some consequences of being in Australia without holding a visa
A. Detention

A person who is not an Australia citizen, and so a non-citizen, and who is in the migration zone while holding a visa is a “lawful non-citizen”.[58] A person who is in the migration zone and who is not a lawful non-citizen is an “unlawful non-citizen”.[59]
[58] Migration Act; ss 5(1) and 13(1). So too is an allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities: s 13(2).
[59] Migration Act; ss 5(1) and 14(1)

Section 189 gives an “officer” to detain certain persons. An “officer” is defined in s 5(1) and, in general terms, includes an officer of the Department of Immigration and Border Protection, an officer under the Customs Act 1901, a police officer or a member of the Australian Defence Force.[60] While ss 189(2) to (4) confer discretionary powers of detention in the circumstances they prescribe, s 189(1) imposes a non-discretionary obligation on an officer:
“If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”
[60] Migration Act; ss 5(1) and 189(5)

Except in certain circumstances, such as those arising when the Minister has personally made a decision under s 501 of the Migration Act,[61] the officer must ensure that the person detained is made aware of certain matters including the provisions of ss 195 and 196.[62] Section 195 permits the person detained a short period within which to apply for a visa. If he or she does not do so within that time, he or she may apply only for a bridging visa or a protection visa. When a person is detention under s 189, the Minister may grant him or her a visa of a particular class if he or she thinks that it is in the public interest to do so.[63] The Minister may exercise that power whether or not the person has applied for that visa[64] but does not have a duty to consider whether to exercise it.[65] If the power is exercised, it must be exercised personally by the Minister.[66]
[61] Migration Act; s 193(1)(a)(iv)
[62] Migration Act; s 194(a)
[63] Migration Act; ss 195A(1) and (2)
[64] Migration Act; s 195A(2)
[65] Migration Act; s 195A(4)
[66] Migration Act; s 195A(5)

Section 196 is concerned with the duration of detention and s 196(1) gives the flavour of the provision:
“An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)       he or she is removed from Australia under section 198 or 199; or
(aa)     an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b)       he or she is deported under section 200; or
(c)       he or she is granted a visa.”

B. Place of detention

If the Minister thinks it in the public interest to do so, he or she may make a determination that one or more specified persons are to reside at a specified place instead of being detained at a place covered by the definition of “immigration detention” in s 6.[67] The Minister is not under a duty to consider whether to exercise the power or whether to vary or revoke a determination previously made[68] but must exercise the power personally.[69]
[67] Migration Act; s 197AB
[68] Migration Act; s 197AE
[69] Migration Act; s 197AF
C. Removal from Australia
Division 8 of Part 2 of the Migration Act is concerned with the removal from Australia of unlawful non-citizens. If an unlawful non-citizen makes a written request to the Minister to be removed, an officer must remove him or her as soon as reasonably practicable.[70] Other circumstances are provided for in s 198 but of relevance is set out in s 198(6):
[70] Migration Act; s 198(1)
“An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

Section 197C is relevant when non-refoulement obligations arise:
“(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.”
CONSIDERATION
Primary considerations

Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11.

A. Protection of the Australian community

The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”[71]
[71] Direction No. 65; [11.1(1)]

A.1 The nature and seriousness of PHRH’s conduct to date

Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)…
d)…
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)…
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.”

A.1.1 Consideration

The offences committed on 5 February 2016 in Australia were the first offences of that sort committed by PRHR but they were probably preceded by others that were committed in Sri Lanka. I say “probably” because the status of the charges in Sri Lanka is somewhat obscure. What is clear is that PRHR has spent some 15 months in prison in respect of some or all of five charges and then a further two months in prison for a reason that is not clear. I am satisfied that they arose out of events associated with his support of a political candidate. Even if I accept his evidence to the effect that political campaigns in Sri Lanka lead to violence amongst the various candidates and their supporters, I find that his behaviour was in his control. On the last occasion, for example, when he wielded a sword and cut and was cut, it was PRHR’s choice to put himself in the position where he came to do that. The same is true of the earlier offences which arose out of the political rallies. As he said in relation to events arising from the 2005 elections in Sri Lanka, on each occasion on which he attended a political rally, he was spotted by supporters of opposing politicians and attacked. He speculated that he might have fought back on one or two occasions and, on one, he might have fought back with a metal rod. In relation to the incident with the sword, he has hurt others. His memory is not clear but it is clear from his evidence that he has chosen to put himself in the situation in which violence occurs.

The same is true of PRHR’s involvement with the people smugglers. On his evidence, I am satisfied that he was aware that he became aware that the owner of the vessel was assisting Tamils to leave Sri Lanka even if he did not know that initially when he accepted work to guard the boat. He does not see himself as a people smuggler or involved in such activities but, on his own evidence, he accepted an offer from the owner of the vessel to have free passage so that he could leave his troubles and fears behind in Sri Lanka. He assisted the skipper and another to steer the boat and to cook for the Tamil passengers. I have already referred to the fact that, despite his view of his own actions, PRHR has concede that there is reasonable suspicion that he has been involved in conduct constituting and offence under s 233D of the Migration Act. That is to say, there is reasonable suspicion that he has provided material support or resources to another person or organisation and that support or those resources aid that other person to engage in conduct constituting the offence of people smuggling.

PRHR’s conduct to that point in 2012 gives reason for concern. It reveals a history of violence in Sri Lanka that cannot be excused by reference to the way in which members of the community behave when elections are conducted in Sri Lanka. PRHR has voluntarily placed himself in situations in which he is attacked but, equally, in which he has attacked others. He excuses his behaviour to some extent by reference to his abusing alcohol over a long period of time but his abuse of alcohol does not explain why he chose to engage in activities that placed him in a situation in which he appears to have paid for his passage to Australia by assisting the owner or skipper of the boat to convey members of the Tamil community to Australia. PRHR was, on his own evidence in his statement made on 11 December 2017, aware what the boat was to be used for. He took advantage of a situation and thought that he did not have to pay for his fare because he had worked out what the vessel was to be used for.

That brings me to the offences which PRHR committed in February 2016 in Australia. On the evidence of PRHR and the notes taken during the interviews of X, I find that both had drunk alcohol to some extent before the photographs were taken and the video recorded. Both say that they were drunk but intoxication does not lessen the gravity of the offence PRHR has committed. I have found that he was aware that she was 13 going on 14 and certainly that she was younger than 16 years of age. Initially, in February 2016, he wanted her to take responsibility for her actions in dancing for him and kissing him but, at the hearing, he took responsibility for the fact that he had breached the law in behaving as he did with a 13 year old.

It is true that he was not imprisoned for an offence which, at the time, attracted level 5 imprisonment i.e. a maximum of ten years’ imprisonment.[72] That might be thought to indicate that his offence was at the lower end of the scale of offending but the fact remains that there was a 20 year age gap between him and X. He held a position of responsibility to X who, by virtue of her being a 13 year old minor, was a vulnerable member of the Australian community. Even if she thought that she was able to make her decisions, he had a responsibility to do the right thing in relation to her. Instead, he chose to do the wrong thing. His abuse of alcohol does not excuse his behaviour. His drinking with her and, even if she started to dance for him voluntarily, his asking her to expose herself to him during the dance is unacceptable.
[72] Crimes Act 1958; s 68(1)

As with his behaviour in Sri Lanka that involved him in violence and his trip on the vessel that gives grounds for suspecting that he has aided a people smuggler or people smugglers, PRHR has voluntarily placed himself in the position where he has behaved poorly. He has shown a pattern of doing so and, taken with the nature of the activities that he engages in as a result, his conduct is of serious concern.

A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct

Paragraph 11.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen reoffending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”

A.2.1 Consideration

The pattern of behaviour in which PRHR has engaged and that leads me to view his conduct as serious is also relevant in considering the risk to the Australian community should he display the same pattern again. It is a pattern in which he has engaged from the early 2000s to 2016. As I have indicated, it is a pattern or voluntarily placing himself in positions in which he will engage in behaviour that is likely to be contrary to the law. The outcome of his engaging in that pattern is not the same for the outcomes range from violence to activities associated with people smuggling and of making/producing child pornography and of knowingly possessing child pornography.

PRHR has said that he has had a lot of time to reflect on his past behaviour and has realised that his religion does not allow offending of the sort in which he has engaged and that God would not want him to do anything that brings pain or suffering to anyone. He is determined to lead a good Christian life on his release. If he is allowed to live in Australia, he will turn the other cheek rather than fight back.

Mr Simmons wrote a report dated 21 February 2017. He set out PRHR’s family history and drug and alcohol history and I have referred to that above. Mr Simmons recorded that there had been two romantic relationships in PRHR’s life. One had involved a woman whom he met in Saudi Arabia but did not last. The other was with a woman whom he called “Elizabeth” and whom he had met online. She was living overseas but had travelled to Australia and lived with him for five months. PRHR thought that he has had approximately 25 casual sexual partners but generally finds himself engaging in sexual activities with them only when he is intoxicated. Mr Warren placed PRHR in the Moderate-Low risk category of sexually reoffending i.e. between the 24^th and 61^st percentile risk category relative to other adult male sex offenders.[73]
[73] SG Documents; SG33 at 322

At the heart of his behaviour leading to violence and child pornography, PRHR blames alcohol and his abuse of it. Mr Warren’s report highlights the place of alcohol in his sexual encounters and in his sexual offending but does not address it in PRHR’s broader life. PRHR’s evidence is that he was not able to attend any alcohol rehabilitation while he was at the Maribyrnong Immigration Detention Centre but has started to do so on Christmas Island. He intends to continue rehabilitation programmes if he is permitted to remain in Australia. Whether he would do that is difficult to assess for he had not taken the opportunity to engage in any such programmes after he arrived in Australia in 2012. On his own evidence, he was aware that alcohol played a part in his behaviour and yet he took no steps to address it. It has taken his convictions in Australia and his being placed in a situation in which alcohol programmes are made available - immigration detention on Christmas Island – for him to become involved. I accept that he has not drunk alcohol since he has been in immigration detention but his not doing so must be assessed in light of alcohol’s not being available to him in that situation.

Mr Warren has assessed PRHR’s risk of sexually reoffending but that is only one type of conduct in which PRHR has engaged and which is of serious concern to the Australian community. PRHR has not tested his ability to overcome his alcohol abuse, which is behind much of his offending behaviour, when he is in the wider community where it would be readily available and where he has not resisted it in the past. The nature of the offences in which he engages when he is affected by alcohol has taken three forms to date: violence, aiding another to engage in people smuggling and in making and possessing child pornography. The harm that flows to members of the Australian community from violence, aiding others in people smuggling activities and child pornography is serious. The potential for harm from each of those three types of behaviour is grave. He has repeated his violent behaviour in Sri Lanka. The fact that he has not repeated it in Australia is not reassuring for he has engaged in behaviour leading to the other two outcomes, both of which are regarded as matters of serious concern by the Australian community. Given that he has a long history of alcohol abuse and that he blames it for some of his behaviour over some 14 or so years and the consequences of that behaviour and given his continuing pattern of behaving in ways that are committed against, or in relation to, vulnerable people or without concern for other people and their safety, the risk that he may repeat his behaviour is unacceptable to the Australian community.

B.Best interests of minor children in Australia affected by the decision

There are no minor children in Australia whose interests are relevant in this case.
C.Expectations of the Australian community
Paragraph 11.3(1) of the Direction states that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”

Later in their reasons for judgment, the majority underlined that they had “… attempted to show, there is nothing in the legislative scheme which compels assessment or decision on the appellant’s claims to fear harm in Lebanon before he is refused a protection visa. …”[106]
[106] [2017] 248 FCR 456; (2017) 248 FCR 456 at [96]; 478

A.4.6 Paragraphs 12(2) and (6) of Direction No. 65

I respectfully suggest that the authorities set out consistent principles. Any differences there might appear to be arise because the application of those principles will vary according to whether a visa refusal or cancellation is under consideration, whether the visa which is sought or has been cancelled is a protection visa or whether the opportunity to apply for a protection visa remains open and the legal consequences of refusal that arise in the particular factual circumstances of the matter.

Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12(2) and (6) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that 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”, is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word “might” or “may” appeared rather than the word “will” would not plainly solve the inaccuracy of the sentence.

To say that Australia “might not remove a non-citizen” in the circumstances described is, I suggest, capable of misleading the reader. The word “might” is the past tense of the word “may”. Whichever is chosen, both are capable of being understood in the sense of expressing permission.[107] If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted – “may not” or “might not” – remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility,[108] the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word “may” is to be understood. Therefore, I suggest that it should be omitted.
[107] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[108] Chambers

The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement 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”. In view of s 197C, it is also incorrect to say that “… the operations 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.” Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.

On behalf of PRHR, Mr Aleksov submitted at the hearing that paragraphs 12.1(2) and (6) are statements of policy, which are statements of policy only and deserve no weight. They are not formal directions for a statement can only be a direction if it is capable of being complied with. A statement of policy is not capable of being complied with and so is not a direction. Where policies are inconsistent with the law, no weight may be given to the policy. Otherwise, he submitted relying on the case of Re Gray and Australian Securities and Investments Commission,[109] a statement of government policy is a mandatory consideration but, if inconsistent with the law, no weight is to be given to it.
[109] [2004] AATA 1234; (2004) 86 ALD 230; Senior Member Fisher

If Direction No. 65 is to be read as a legislative instrument, which was not his primary submission, it is not open to the Minister or to me to omit or change words. To construe it is permitted but to amend it is not, was the core of his submission. If the words it uses are not consistent with the law, they cannot simply be severed or amended. Rather, the whole of Part B of Direction No. 65 must fall with the particular word and sentence considered contrary to the law.

In his written submission, Mr Aleksov submitted that the Minister is wrong to assert that the Direction is not a legislative instrument. He submitted that it plainly alters the content of the law and does so because it adds to the circumstances that must exist before a purported exercise of power under the character regime is one that is given legal effect. All persons exercising power under the character regime of the Migration Act must comply with it. If they do not do so, their decisions are liable to be set aside in a forum of competent jurisdiction. That fact demonstrates that Direction No. 65 adds to the content of the law and so is a legislative instrument. It is not open to the Minister to make an amendment to his Direction by changing a word in paragraph 12.1(2) and deleting a sentence from paragraph 12.1(6).

On behalf of the Minister, Ms Jackson submitted that Direction No. 65 is not a legislative instrument but an instrument to which s 46(2) of the Acts Interpretation Act 1901 (AI Act) applies. That means that, to the extent to which it is not in excess of the relevant authority’s power, it is to be taken as a valid instrument. It is more than mere policy in that it is binding upon those, including the Tribunal, performing functions or exercising powers under the Migration Act. To the extent that it is in excess of power, consideration must be given to whether it is possible to sever those parts. Ms Jackson referred to Minister for Home Affairs v Tervonen[110] (Tervonen) and to the application of common law principles of severance considered in Coco v R.[111] Severance is possible in this instance and, putting aside the two instances in paragraphs 12.1(2) and (6), the validity of Part B, and of Direction No. 65, is not affected.
[110] [2008] FCAFC 24; (2008) 166 FCR 91; 245 ALR 710; 101 ALD 12 at [105]-[106]; 724; 26; Jacobson, Bennett and Buchanan JJ
[111] [1994] HCA 15; (1994) 179 CLR 427; 120 ALR 415

In Re Jagroop and Minister for Immigration and Border Protection[112] (Jagroop), I considered the characterisation of Direction No. 55 as well as Direction No. 65. I decided that Directions made under s 499, as are both those Directions, are not legislative instruments. Having regard to the submissions that have been made in this case, I have come to the same conclusion and adopt those reasons for doing so. In essence, I have decided that the power that Parliament has given to the Minister under s 499 is not a power to modify what would otherwise be the law or its operation. Section 499(2) underlines that Parliament did not intend that to be the case.
[112] [2015] AATA 751; (2015) 67 AAR 288 at [39]-[53]; 303-307

Mr Aleksov submits that the word “directions” should be understood as capable of compliance or non-compliance. That follows from the requirement imposed by s 499(2A) that a person or body must comply with a direction given under s 499(1). It does not follow that a direction may not be concerned with what might be regarded as a policy matter. A “direction” or, as it appears in s 499(1), “directions” ordinarily signifies:
“… information, instructions or advice, eg on how to construct or operate a piece of equipment. 4 (directions) instructions about the way to go to reach a place. …”[113]
[113] Chambers

As I said in Jagroop:
“ It is clear from the power given to the Minister under s 499 that it is a power to give guidelines as to the way in which the discretion inherent in s 501 is to be exercised. That is so even if, consistent with the example given in s 499(1A), those guidelines were to require a person to exercise power under s 501 rather than under s 200 when both powers were available. …”[114]
[114] [2015] AATA 751; (2015) 67 AAR 288 at [47]; 305

That is so whether a direction is given as to the provision under which to make a decision, the matters to which consideration must be given or the weight to be given to some matters relative to others. Whether they might be characterised by some as policy or not, they remain directions in the sense that they are instructions about how a person exercising functions and powers under the Migration Act is to go about the performance of those functions or exercise of those powers. They are capable of being complied with, or not as the case may be. Compliance requires regard to be had to them if they arise in the particular circumstances of a case. Direction No. 65 does not seek to limit a decision-maker in having regard to relevant matters that arise in the particular factual context of a particular case. That is clear from paragraph 12(1) when it sets other considerations that must be taken into account but specifically notes that those considerations are not limited to the four that are developed in paragraphs 12.1 to 12.4.

Section 499(2) provides that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with the Regulations. My finding that two passages are inconsistent does not render the whole of Direction No. 65 or even Part B of it null and void. As I have found that it is not a legislation instrument and as it cannot be characterised as rules of court, s 46(2) of the AI Act requires me to regard Direction No. 65 as if it were an Act of Parliament. Each of its provisions is to be regarded as a section of an Act and it is to be read and construed subject to, in this case, the Migration Act, and so as not to exceed the Minister’s power.[115]
[115] AI Act; ss 46(1)(a) and (c)

Section 46(2) of the AI Act provides:
“If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.”
This is not a provision that authorises an instrument to be read as if it were rewritten with other words. It provides that, to the extent that it is not in excess of power, the instrument is to be taken as a valid instrument. This is consistent with the approach taken by the Full Court of the Federal Court in Tervonen.[116] The two sentences can be excised from paragraph 12.1 of Direction No. 65 leaving statements that are within power.
[116] [2008] FCAFC 24; (2008) 166 FCR 91; 245 ALR 710; 101 ALD 12 at [105]-[106]; 724; 26

A.4.6 Application of principles in context of the refusal of PRHR’s visa

In this case, the RRT has already decided that Australia has non-refoulement obligations in respect of PRHR in the context of his application for a protection visa. The claims that PRHR now makes in relation to his return to Sri Lanka are consistent with those on which the RRT found that Australia owed those obligations i.e. that the Sri Lankan authorities will consider that PRHR has knowledge about people smuggling because he initially acted a guard and was then represented to the Sri Lankan Navy as a crew member on the vessel that brought Tamil asylum seekers to Australia and will torture him to extract information from him.

Australia’s non-refoulement obligations to PRHR arise because they have been incorporated into its domestic law. They depend upon that law and are shaped and modified by it. In the context of this case, which centres on a decision to refuse PRHR’s application for a TPV, regard must first be had to s 65(1). Section 65(1)(a) requires the Minister to be satisfied of all three matters set out in s 65(1)(a)(i), (ii) and (iii) before it imposes an obligation on the Minister to grant a visa. In this case, satisfaction of the criteria in s 36 for the grant of a protection visa is one of the three essential of which the Minister must be satisfied before he is obliged to grant visa. Of the criteria in s 36, PRHR has met that in s 36(2)(aa) in light of the RRT’s decision that he is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because he has substantial grounds for believing that, as a necessary and foreseeable consequence of PRHR’s being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The third matter of which the Minister must be satisfied before being obliged to grant a visa by the terms of s 65(1)(a) is that the grant of the visa is not prevented by, in this case, s 501.

In light of the authorities I have set out above, regard is to be had to the non-refoulement obligations found by the RRT as part of the suite of claims and considerations that arise in the factual context of PRHR’s circumstances. In addition to the claims and considerations that arise in a factual context, regard must also be had to the legal consequences that flow from any decision to refuse a protection visa. In light of ss 197C and 198 of the Act, one of those legal consequences is that, if PRHR’s application for a visa is refused, an officer is obliged to remove him from Australia as soon as reasonably practicable. An officer must do so irrespective of the non-refoulement obligations that Australia owes to PRHR. What is “reasonably practicable” is not developed in the Migration Act. Whether it would take account of the possibility or likelihood that the Minister might exercise his power to grant PRHR a visa under s 195A, is not a matter I need to consider. That follows from the fact that there is no indication in this case that there is any likelihood that he will choose to do so and there is no evidence that Sri Lanka will refuse to receive PRHR if removed from Australia. In view of the removal obligation in those circumstances and the unlikelihood of the Minister’s exercising his power under s 195A, PRHR’s indefinite detention in Australia under the Migration Act is not a legal consequence of a decision to refuse PRHR’s application for a protection visa.

Given that legal consequence is that PRHR would be returned to Sri Lanka, consideration must be given to there being a real risk that he will suffer significant harm on his return through the infliction of torture. It is one of the factors that must be considered alongside the suite of other claims and considerations that arise in the factual context of PRHR’s circumstances.

B. Impact on family members

Paragraph 12.2(1) of Direction No. 65 states:
“Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.

B.1 Consideration

PRHR does not have family members in Australia. Elizabeth, with whom he had a five month relationship in Australia, returned to Australia and attended court when the child pornography offences were considered (whether at the Magistrates’ Court or at the County Court is not apparent) but left the same day. She has not returned and I have no evidence that PRHR has had any contact with her in the meantime. His hopes that they will marry one day would not seem to be built on a firm foundation. No other friends were called to give evidence regarding any impact refusal of his visa application might have on them.

C.Impact on victims

Paragraph 12.3(1) states:
“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.”

C.1 Consideration

I do not have a statement from any of the victims of PRHR’s offences. None could be realistically expected from those in Sri Lanka or the Tamil asylum seekers who are equally victims of offences under the Migration Act committed by the people smugglers. X is a victim of PRHR’s crimes in Australia. Apart from any of the Tamil asylum seekers or Sri Lankans who have been granted a visa to enter and remain in Australia (and I do not have evidence of any) she is the only person who is a member of the Australian community. She declined to give a Visual and Audio Recording of Evidence or to make a statement. From that and from the fact that she thought that he was “nice”, it can be presumed that X might be disappointed by a decision to refuse PRHR’s visa. The impact of such a decision on members of the Australian community as a whole would be to cause them general concern that a person who has abused their trust by behaving as he did to a minor is permitted to remain in the country.

D. Impact on Australian business interests

Paragraph 12(1) relating to the impact of refusing PRHR’s application for a visa on Australian business interests as he was not employed or engaged in any business or in the delivery of any project or service in Australia.

Decision

The legal consequences of affirming the decision to refuse PRHR a visa weigh heavily on me but I have concluded that the balance of all of the relevant considerations lies in favour of my doing so. PRHR has a history of engaging in behaviour that has led to his being charged with five offences in Sri Lanka and of his being charged and convicted with two offences in Australia. His behaviour that was of concern in Sri Lanka and that seem to have led to his being convicted of offences, involved assault, theft of a firearm, extortion and attacking a supporter of the ruling PA party. Even though the offences were committed in Sri Lanka, they are offences that arise from behaviour that does not respect other people’s security of person or property. That sort of behaviour is of concern and it was followed, even if some time later, by behaviour that showed a disregard for the laws of both Sri Lanka and Australia. That was behaviour that led to his aiding a people smuggler or people smugglers. This was followed by his behaviour involving X which is behaviour which is unacceptable behaviour towards a 13 year old minor in the Australian community.

PRHR has blamed his abuse of alcohol for his behaviour but, on his own evidence, he had been drinking alcohol for some 15 years by the time he was placed in immigration detention. He had continued to put himself in positions where he exposed himself to acting inappropriately whether it be violence, aiding others to engage in people smuggling or child pornography but did not take steps to address what might lie behind his continuing to do so. Although he has started to address his alcohol abuse on Christmas Island, there is no measure of whether he will be able to maintain his abstinence when he is out of a controlled environment. Until he has demonstrated that he can do so, there must be a risk that cannot be ignored that he will return to alcohol abuse and that he will engage in inappropriate behaviour of the sort in which he has previously engaged and which is not acceptable in the Australian community.

Australia has protection obligations to PRHR on the basis that there is a real risk he will suffer significant harm in the form of torture by Sri Lankan authorities when they seek information from his regarding those engaged in people smuggling. Torture in any circumstances is abhorrent to the Australian community but the risk to PRHR from torture is outweighed in this matter by the risk that he presents to the Australian community and to its members should he be permitted to remain. PRHR has also expressed concern about danger he might face from others with whom he has engaged in the past. That is of lesser concern for two reasons. One is that he told the RRT that he had previously returned to the area in Sri Lanka on a number of occasions after 2006 and had done so without incident and without feeling threatened.[117] The other is that the threat of which he speaks is expressed in nebulous terms and I cannot identify it with any specificity.

[117] SG Documents; SG12 at 133

Having regard to all of the matters that I have considered in these reasons, I have decided that PRHR’s application for a visa should be refused. I therefore affirm the decision of the delegate of the Minister dated 3 October 2017 to refuse PRHR’s application for a Temporary Protection (Class XD) visa (TPV) under s 501(1) of the Migration Act.

I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for the decision herein of Deputy President Forgie

............[sgd]............................................................
Associate
Dated: 22 December 2017

Dates of hearing:

Date of last submission:

14 and 19 December 2017

21 December 2017

Counsel for the Applicant:

Solicitor for the Applicant:

Mr Angel Aleksov

Mr Virajith Hewaarachchi
Refugee Legal

Solicitor for the Respondent:

Ms Meredith Jackson
Australian Government Solicitor