QQYJ and Minister for Home Affairs (Migration) - [2019] AATA 770

QQYJ and Minister for Home Affairs (Migration) [2019] AATA 770 (29 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0633
Re:QQYJ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member T Eteuati
Date:29 April 2019
Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised.
.......................................................................
Member T Eteuati
Catchwords
MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(d)(i) - whether the discretion to refuse to grant the Bridging visa should be exercised - application of Direction No. 79 –decision under review set aside and remitted for reconsideration
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
CCYW and Minister for Home Affairs (Migration) [2019] AATA 241
Coker v Minister for Immigration and Border Protection[2017] FCA 929
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
Frazer (Migration) [2018] AATA 593
FYBR v Minister for Home Affairs [2019] FCA 500
Hussain Hazara and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 159
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2)(1996) 23 AAR 52
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Toki and Minister for Home Affairs (Migration) [2019] AATA 742
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct Bill 1998 (No.2)
Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014
REASONS FOR DECISION
Member T Eteuati
29 April 2019
BACKGROUND

This is an application by QQYJ (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 1 February 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).[1]
[1] G Documents, G2, pages 9 - 19, Notice of visa refusal under section 501(1) of the Migration Act 1958, dated 4 February 2018 and attachments.
The Applicant was granted a Class GA Subclass 400 Temporary Work (Shortstay Activity) visa on 16 October 2014. He arrived in Australia on 15 December 2014. The Applicant’s visa ceased on 15 January 2015 and the Applicant became an unlawful non-citizen. The Applicant applied for a Protection visa on 10 July 2018 and his application was refused by the Minister’s delegate on 7 August 2018. That decision was affirmed by the Administrative Appeals Tribunal (“Tribunal”) on 15 January 2019. The Applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court on 6 February 2019.
On 27 August 2018 the Applicant applied for a Bridging visa. That application was refused on 30 August 2018 by the Minister’s delegate. On 18 September 2018 the Tribunal remitted consideration of the Applicant’s Bridging visa application to the Department for reconsideration. In that decision the Tribunal found, among other things, that the Applicant would meet the condition of a Bridging visa to not engage in criminal conduct.
On 1 February 2019 the Minister’s delegate again refused the Applicant’s application for a Bridging visa, this time on the basis that the Applicant failed the character test in section 501 of the Act as there was a risk that he would engage in criminal conduct in Australia.
On 6 February 2019 the Applicant applied to the Tribunal for review of the Minister’s delegate’s decision to refuse him a Bridging visa.
The matter was heard on the 17 April 2019. For the reasons below, I have found that the Minister’s delegate’s decision, to refuse the Applicant’s application for a Bridging visa, should be set aside and that the matter be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised. The Tribunal considers that this is the preferable decision in this case.
ISSUES
Section 501(1) of the Act provides:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “
The two issues are:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so
·whether the Tribunal considers that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, should be exercised.
If the Applicant satisfies the Tribunal that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under section 501(1) of the Act is not enlivened.
If the Applicant does not satisfy the Tribunal that the Applicant passes the character test, the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in section 501(1) of the Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, not be exercised.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”) and the documents tendered into evidence by the Applicant and marked as exhibits A1 to A3. The evidence contained in these documents is discussed throughout these Reasons: see ‘Annexure 1’.
The Tribunal refused to admit documents which the Respondent sought to tender during the hearing to show that the Applicant had escaped from immigration detention. Those documents were never provided to the Applicant, who was self-represented and appeared by Video link from Western Australia, and the Tribunal considers that it would be in breach of the rules of fairness for the Tribunal to rely on those documents in the circumstances. In any event, from a brief consideration of the documents to determine admissibility, the Tribunal does not consider that the documents definitively showed that the Applicant had been in, and escaped from, immigration detention such that the Tribunal could determine that this was the case. As the Respondent submitted, it is a “serious offence” for an Applicant to have been convicted of escaping immigration detention.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 16 of these Reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) of the Act relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
…
(c)having regard to either or both of the following:
(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
…
The Minister’s delegate relied solely on subparagraph 501(6)(d)(i) of the Act in finding that the Applicant did not pass the character test. However, before the Tribunal, the Respondent also sought to rely on paragraph 501(6)(c) of the Act to support an argument that the Applicant did not pass the character test. Such reliance on an alternative ground before the Tribunal is generally permissible: see the decisions of Deputy President Forgie in Hussain Hazara and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 159 and Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2)(1996) 23 AAR 52 at [56].
Summary of evidence of witnesses
The Applicant
The Applicant stated that he was born in in Fiji and lived there until he arrived in Australia on 15 December 2014. He said that in 2014 he had been granted a visa to attend a rugby tournament in Australia. He said he missed the tournament but travelled to Australia nonetheless as he wanted to spend his school holidays in Australia. In addition, the Applicant said that he needed to leave Fiji as he feared persecution from his uncle and police in Fiji. The Applicant said that he also now feared persecution from his community in Fiji and the people of his village as rugby players from his village had been denied visas because the Applicant overstayed his visa in Australia. For the purposes of this decision, the Applicant’s specific protection claims are not relevant.
The Applicant said that when he arrived in Australia he travelled to Mareeba in Far North Queensland. The Applicant said that he began a relationship with his de facto partner in early 2015. He said that they had met in January 2015 as his partner was the property manager for the house in which the Applicant was living. Around the same time, in January 2015, the Applicant’s visa expired and he became an unlawful non-citizen. He said that he remained in Australia without a visa as he feared that he would be harmed or killed if he returned to Fiji. The couple’s child was born on 16 May 2017. The Applicant’s father passed away in Fiji on 20 July 2017.
The Applicant said that on 12 March 2018 he attended the Mareeba Magistrate’s Court in relation to the charge of possessing a dangerous drug on 7 January 2017. No conviction was recorded and he was fined $300. The Applicant said that the offence related to him possessing a small amount of marijuana for personal use. He said he began smoking marijuana to deal with the stress and anxiety relating to his fears of returning to Fiji, that his father had been taken to hospital in Fiji and that his partner was pregnant with their first child.
The Applicant said that after he was dealt with by the court on 12 March 2018 he was taken into immigration detention by two Serco officers. He said that he was staying with the Serco officers at a hotel in Cairns in transit to an Immigration Detention Centre. He said that he took a shower and after the shower he found that the Serco officers were nowhere to be seen. The Applicant said that the door of the hotel room was open and he thought the Serco officers had gone home. He said that he walked out of the hotel room. The Applicant said that he did so because he was worried about his partner and young daughter being by themselves; was worried that his partner would suffer from an anxiety attack not knowing that the Applicant had been detained; and that he feared that he would be removed to Fiji where he said that he would face persecution.
The Applicant said that on 2 June 2018 he was arrested for possessing a small quantity of marijuana for personal use. He said that he had started using marijuana again to deal with the stress and anxiety caused by the thought that he would be removed to Fiji where he feared he would be persecuted and would be separated from his partner and child.
The Applicant said that, if he is successful in the current application and is allowed to remain in the community with his partner and child pending the outcome of his current Federal Circuit Court proceedings, he will never smoke marijuana again. The Applicant said that the Tribunal could be satisfied that he would not do so as he had been well behaved during his time in immigration detention and had undertaken certain rehabilitation courses. In addition, and importantly, the Applicant said that if he were to be granted a Bridging visa so that he could remain with his partner and child in the community pending the outcome of his Federal Circuit Court application, he did not want to jeopardise the chance to remain in the community with his partner and child by being arrested again for possessing marijuana.
The Tribunal raised its concern that, given that the Applicant had overstayed his visa, and may have absconded from detention, and because he claimed to fear harm if he were returned to Fiji, if the Applicant is ultimately unsuccessful in being granted a Protection visa, or another visa allowing him to remain in Australia, he may remain in the community after the expiry of a Bridging visa and attempt to avoid detection and removal from Australia.
The Applicant indicated that if his Protection visa application was ultimately unsuccessful, he would turn himself in to the authorities in Australia for removal.
The Applicant’s partner
The Applicant’s partner is the holder of a Class TY Subclass 444 (Special Category) visa. While this visa is technically a temporary visa, a TY 444 visa allows its holder to remain indefinitely in Australia.
The Applicant’s partner indicated that she met the Applicant in the beginning of 2015. She said that their child was born in May 2017 and that the Applicant’s father passed away in June 2017.
The Applicant’s partner indicated that the Applicant was not a regular user of marijuana and he had only used marijuana in recent times to deal with the stress and anxiety caused by the thought of being returned to Fiji where he feared persecution and being separated from her and his child.
She said that if the Applicant were allowed to return to the community, she would ensure that the Applicant never used marijuana again.
In addition, she told the Tribunal that if the Applicant was ultimately unsuccessful in being granted a Protection visa, she would ensure that the Applicant turned himself into immigration authorities.
The Applicant’s partner said that it had been extremely difficult for her and her child since the Applicant had been taken into immigration detention on 2 June 2018. The Applicant’s partner indicated that she had suffered anxiety attacks in the past. The Applicant’s partner said that when she gave birth to their child the Applicant was the sole income earner for the family.
The Applicant’s partner said that prior to the Applicant’s detention she had been working as a real estate property manager. She said that since the Applicant’s detention she could not work as she needed to stay at home to care for their young child. The Applicant’s partner said that, as a result of the Applicant’s detention, she and their child had suffered financially and emotionally. The Applicant’s partner said that she was surviving on Centrelink payments. She said their daughter had been hospitalised a number of times which she attributed to the child becoming sick because of the Applicant’s absence. The Applicant’s partner said that her daughter cried every day and was highly distressed and distraught by the Applicant’s absence. The Applicant’s partner said that if the Applicant were allowed to return to them in the community, she would be able to resume her employment as a property manager to provide financially for the family. In addition, the harm caused to their child by the Applicant’s absence would also cease and the Applicant would care for their child while she worked.
The Applicant’s partner indicated that if the Applicant was ultimately unsuccessful in being granted a Protection visa or another visa to remain in Australia and had to leave Australia, she would remain in Australia with their child. The Applicant’s partner said that, given the harm which was likely to occur to the Applicant if he were to return to Fiji, it was too dangerous for her and their child to live in Fiji, or indeed to visit Fiji.
Offending history
An Australian Criminal Intelligence Commission (“ACIC”) Criminal History Check for the Applicant dated 2 August 2018 shows the following offences committed by the Applicant:
(a)2 June 2018 – [DM] 9(1) Possessing Dangerous Drugs on 2 June 2018. Outcome: no conviction recorded, fined $450.00; and
(b)12 March 2018 – [DM] 9(1) Possessing Dangerous Drugs on 7 January 2017. Outcome: no conviction recorded, fined $300.00.[2]
[2] G Documents, G2, pages 20-21, Check Results report dated 2 August 2018.
The Respondent also sought to rely as a fact on the allegation that the Applicant had escaped from immigration detention on 13 March 2018. As the Respondent pointed out, escaping from immigration detention is an offence pursuant to section 197A of the Act punishable by five years imprisonment. A person who has been convicted of an offence against section 197A is taken not to pass the character test: section 501(6)(ab) of the Act. In addition, a person who is convicted of an offence that was committed after the person escaped from immigration detention but before the person was taken into immigration detention again is taken not to pass the character test: section 501(6)(aa)(iii) of the Act.
The Applicant has not been charged with, or convicted of, escaping from immigration detention so he does not fail the character test on that basis. Further, even if I accepted that the Applicant had escaped from immigration detention, no conviction was recorded in relation to his second offence of possess dangerous drug and therefore, the Applicant does not fail the character test pursuant to section 501(6)(aa)(iii) of the Act.
Paragraph 11.1.1(1)(d) of Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) relevantly provides that an offence against section 197A of the Act is serious; as is a crime committed after a person escaped immigration detention but before the person was taken into immigration detention again. Thus, if the Tribunal were to find that the Applicant escaped immigration detention, the effect of paragraph 11.1.1(1)(d) of the Direction is that the Applicant’s second offence of possessing a dangerous drug is taken to be serious, notwithstanding that the offence is objectively a low level offence for which no conviction was recorded and a fine of $450 was issued.
The basis of the delegate’s finding that the Applicant escaped from immigration detention was information contained in two statutory declarations made by the Applicant in August and October 2018. In those statements the Applicant stated:
“…After my hearing, I was told by the Judge that I was going to get fined for possession of dangerous drugs and not only that police kept me there to talk to the immigration, and that I was going to get picked up by a serco officer where they will transfer me to Brisbane detention centre. I was so worried about my partner and my daughter knowing they were home alone because my inlaws were away on holiday to the Cook Islands. I was stressed, depressed and was worried about my partner and her anxiety attacks form [sic] wondering where could I have been. I found myself with two officers in a hotel and I needed to shower, when I came out, I could’nt [sic] find or hear the officers looked at the front door and it was opened thinking they had gone home I walked out to my mate who was working nearby at Esplanade in Cairns and from there he took me to his house at Trinity Beach.”

The delegate’s decision does not disclose that any evidence, other than the Applicant’s admission to walking out of an empty hotel room after he had been detained earlier that day, was relied upon to found a finding that the Applicant had escaped from immigration detention in breach of section 197A of the Act.
Similarly, the Notice of Intention to Consider Refusal of the Applicant’s application for a Bridging E (Class WE) visa, dated 4 October 2018, does not contain any evidence, other than the Applicant’s own statements, to found a finding that the Applicant had escaped from immigration detention in breach of section 197A of the Act.
As mentioned previously, in the middle of the hearing on 17 April 2019, the Respondent sought to tender evidence which was said to show that the Applicant had escaped from immigration detention. Those documents were never provided to the Applicant, who was self-represented and was appearing before the Tribunal by video-link from Western Australia.
As mentioned above, the Tribunal considers that it would be in breach of the rules of fairness for the Tribunal to rely on those documents in the circumstances. In any event, from a brief consideration of the documents to determine admissibility, the Tribunal does not consider that the documents definitively showed that the Applicant had been in and escaped from immigration detention such that the Tribunal could determine this was the case.
On its face, it appears that the threshold in section 501(6)(d)(i) of the Act for finding that a person does not pass the character test is a low one and that it is sufficient for the cancellation power to be enlivened that, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
The first thing to say about section 501(6)(d)(i) of the Act as it applies in this case, is that it appears to presuppose that the outcome of a decision under section 501 would result in a person being “allowed to enter or to remain in Australia.” In the present case, the Applicant was refused a Bridging visa. He currently has an application for review before the Federal Circuit Court of the Tribunal’s decision of 15 January 2019 to affirm the decision to refuse him the grant of a Protection visa. If he is successful in his current application before the Tribunal then it is likely that he will be granted a Bridging visa and be freed from immigration detention. That Bridging visa is likely to remain until proceedings relating to his application for a Protection visa are ultimately determined. If he is unsuccessful in his current application before the Tribunal, he will remain an unlawful non-citizen and be required to remain detained pursuant to sections 189 and 196 of the Act. If he is ultimately successful in being granted a Protection visa, he will be allowed to remain in Australia. If he is not ultimately successful in being granted a Protection visa, it is likely that he will be removed from Australia pursuant to section 198 of the Act.
The important point regarding these particular proceedings is that these proceedings will not determine whether the Applicant is “allowed to enter or to remain in Australia”. Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application with his family in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.
Having said that, for the purpose of this application, the Tribunal is willing to accept that section 501(6)(d)(i) of the Act applies to the Applicant such that the Applicant will not pass the character test if the Tribunal finds that if he is released from detention there is a risk that he would engage in criminal conduct in Australia.
The second thing to say about section 501(6)(d)(i) of the Act in this case is that the Direction appears to purport to direct decision-makers as to the interpretation of the provision.
Paragraph 6 of Annex A to the Direction relevantly provides:
“…
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.”
While it is clear that the Direction cannot be inconsistent with the Act or the Regulations, and cannot, of its own accord, define or restrict the extent of the power section 501(6)(d)(i) of the Act, the Tribunal considers that the guidance provided for by paragraph 6 of Annex A to the Direction does not fall foul of these principles as it is consistent with the intention evidenced in the secondary material as follows.
In Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970, Senior Member Puplick stated at [26] and [27]:
“It is important to note the deliberate public policy decision to specify that there needs to be merely “a” risk to enliven the operation of subsection 501(6) of the Act. In 1998, passage of the Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct) Bill inserted a new regime into the Migration Act in the form of section 501(6). That legislation provided that in assessing the threat to the community there had to be a “substantial risk” that the Applicant would offend. The Explanatory Memorandum to the Bill stated: “The requirement of “significant risk” is intended to reduce the current threshold of risk that a decision-maker can accept before making a finding that a personal will not pass the character test because they may engage in specified conduct.”
1. However in 2014, the Migration Amendment (Character and General Visa Cancellation) Act specifically removed the word “significant” from clause 501(6)(d) leaving it as “a” risk. On this occasion the Explanatory Memorandum stated:
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (“Sabharwal”), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“… . Section 501(6)(d)(i) provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would...engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal the Full Court found that in that case the Minister had found that there was a risk that the Applicant would engage in criminal conduct in Australia. The Full Court stated that the Minister had said he “could not rule out the possibility of further offending by Mr Sabharwal”. The Full Court, citing Coker v Minister for Immigration and Border Protection[2017] FCA 929 at [62] per Moshinsky J, found that the Minister’s statement was in substance also a finding that there was a risk of the Applicant reoffending. The Full Court concluded that in their view the Minister’s conclusion that there was a risk that the Applicant might again engage in offending conduct was one which a reasonable decision-maker could reach on the materials before the Minister.
In QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 (“QKVH”), Deputy President Forgie discussed the meaning of “criminal conduct” in section 501(6)(d) and the meaning of “risk” in section 501(6)(d)(i) of the Act. She stated at [11] to [13]:
“What is meant by the words “risk of the person engaging in conduct for which a criminal conduct could be recorded”? I note the general view that:
““.. Interpreting a composite phrase by dissecting it into its component words and seeking a meaning for each has, however, long been identified as an inappropriate method of construing such a phrase ...”
I am not concerned with a phrase as such but I will bear that in mind as I look first to the meaning of “criminal conduct”. Consistently with the statement in cl 6.1(2) of annex A of the Ministerial Direction, the reference to “criminal conduct” in s 501(d)(i) is not limited to conduct which has led to a criminal conviction. It extends to conduct “... for which a criminal conviction could be recorded ...”. As the Full Court of the Federal Court said in Minister for Immigration v Baker after considering the various references in the Migration Act to “criminal convictions” and to “past criminal conduct” and the like, the reference to “criminal conduct”:
“... is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, ‘Criminal Allegations in Civil Cases’ (1991) 107 LQR 194.”
In other words, it may be that the conduct led to a court’s finding the conduct proved when a person was charged with an offence but doing so without conviction. That conduct would be “criminal conduct”. It may be that the person has engaged in conduct, for which he or she could have been charged with an offence and, if the charge were proved, convicted of a criminal offence but never was. If the Tribunal is satisfied that this conduct occurred, that conduct could be regarded as “criminal conduct”. Overstaying a visa and so being in Australia as an unlawful non-citizen is not of itself criminal conduct for there is no criminal offence of that type. There are consequences, of course, such as detention and removal from the country but they are not consequences that might lead to a conviction for a criminal offence.
The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
“... 1 the chance or possibility of suffering loss, injury, damage, etc; ...”.
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.”
Similarly, in Frazer (Migration) [2018] AATA 593 at [20] and [21], I said the following regarding the risk threshold to enliven the cancellation power in section 116(1)(e)(ii) of the Act:
“It appears that the threshold in section 116(1)(e)(ii) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of an individual or individuals.
Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person may or might be a risk to the health or safety of an individual or individuals absent any compelling evidence to support that assessment is insufficient to enliven the cancellation power. It could be said that any given person in the community ‘may’ or ‘might be’ a risk to the health or safety of an individual or individuals but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.”
In the present case, there is evidence that the Applicant has committed the offence of possessing dangerous drugs on two occasions in 2018.
There is also some evidence that the Applicant may have escaped from immigration detention, although the Tribunal must approach this issue with caution.
The Tribunal notes that in cases like this one where a visa has been refused, in part because it is claimed that an Applicant has committed offences for which he has not been charged or convicted, it is very difficult to determine whether there is a risk that the Applicant will commit the offences which he is being alleged of committing. The difficulty in determining whether there is a risk that the Applicant will commit the offences which he is being alleged of committing is amplified when viewed within a broader legal framework which includes the presumption of innocence, a fundamental principle of the common law and one contained in the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party.
From a practical perspective, obtaining information from an applicant as to the possibility that he or she committed offences is also difficult because of the applicant’s privilege against self-incrimination, a common law right which prevents witnesses from being compelled to give evidence which may incriminate them.
Further, even if the Tribunal were required to determine whether the Applicant committed the offence of escaping from immigration detention, it is not clear on the evidence before the Tribunal whether such an offence was committed.
Section 189 of the Act relevantly provides that an officer who knows or reasonably suspects that a person is an unlawful non-citizen, must detain the person.
Section 5 of the Act defines “detain” as meaning:
“(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.”
Section 5 of the Act defines “immigration detention” as meaning:
“(a) being in the company of, and restrained by:
(i)an officer; or
(ii)in relation to a particular detainee--another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i)in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii)in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or
(v)in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
In the present case is not clear that the Applicant was being detained, or whether he escaped from immigration detention.
First, it is not clear whether the Serco officers who had been with him previously were “officers” or persons directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee.
Secondly, it does not appear that the hotel where the Applicant had been brought to by the Serco officers was a detention centre, a prison or remand centre, a police station or watch house or a vessel. It is possible that the hotel may have been a place approved by the Minister in writing for the purposes of paragraph (b)(v) of the definition of immigration detention in section 5 of the Act. However, there is no evidence before the Tribunal that this was the case.
If, as appears likely, the Applicant was not being held in a place referred to in paragraph (b)(v) of the definition of immigration detention in section 5 of the Act, and the Serco officers did not meet the description in paragraph (a) of the definition of immigration detention in section 5 of the Act, then it appears that the Applicant was not in immigration detention. Even if the Serco officers were either “officers” or “persons directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee”, it is not clear that the Applicant was in immigration detention. That is because the Applicant’s evidence, which has not been contradicted, was that when he came out of the shower, the Serco officers were not present. If the Serco officers were not present in the hotel room when the Applicant departed, it is very difficult to see how the Applicant was “in the company of, and restrained by” the Serco officers.
The Tribunal notes that is not to the point that in his recent submissions the Applicant said that he escaped from detention. It is not for the Applicant to determine whether he was in immigration detention and whether he committed an offence by escaping from immigration detention. From the Applicant’s submissions and his previous statements, it does not appear that the Applicant is aware of the matters discussed above which cast doubt on whether the Applicant was being detained and whether he escaped from immigration detention.
Whether the Applicant escaped from immigration detention for the purposes of determining whether he passes the character test and whether to exercise the discretion is not necessary to determine in this case for two reasons. The first is that the Tribunal considers that there is a risk that if the Applicant is allowed to remain in Australia, the Applicant will engage in criminal conduct in Australia. The Tribunal considers that there is a risk that the Applicant will revert to smoking marijuana and be convicted of possessing dangerous drugs. While the Tribunal has considered the evidence of the Applicant and his partner, that the Applicant would not return to smoking marijuana and jeopardise the chance of remaining in the community with his partner and child, the Applicant has already been found guilty of possessing marijuana on two occasions. The possibility that the Applicant will have to leave Australia still exists as does the possibility that he will be permanently separated from his partner and child. In those circumstances, the Tribunal considers that there is a risk which is greater than a “possibility” or “minimal or remote chance” that if the Applicant were to be released into the community he will be convicted of possessing marijuana.

The second reason that it is unnecessary for the Tribunal to determine whether the Applicant escaped from immigration detention is because, for practical reasons, he will not be able to escape from immigration detention in the future if he is successful before the Tribunal and is released from detention.
From a practical point of view, the issue is whether there is a risk that the Applicant will be convicted of dangerous drugs or escaping from immigration detention if he is released from detention. Obviously, there is no risk that the Applicant will be convicted of future offences of escaping from immigration detention if he is not in detention. However, he could be convicted of possessing dangerous drugs if released from immigration detention.
The Tribunal notes that it is somewhat nonsensical for the Respondent to submit that the Applicant should not be granted a Bridging visa and should remain in immigration detention as there is a risk that the Applicant may escape from immigration detention if he were to be released into the community.
As I have found that there is a risk that, if the Applicant is allowed to remain in Australia, the Applicant may engage in criminal conduct in Australia, the Applicant does not pass the character test. As such, it is unnecessary for the Tribunal to determine whether the Applicant is not of good character for the purposes of section 501(6)(c) of the Act.
SHOULD THE DISCRETION TO CANCEL THE APPLICANT’S VISA BE EXERCISED?
In considering whether to exercise the discretion in section 501(1) to refuse to grant an applicant a visa, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 applies. The Direction provides guidance for decision-makers in determining, relevantly, whether to refuse to grant an applicant a visa
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part B of the Direction.
Paragraph 11 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)    Primary considerations should generally be given greater weight than the other considerations.
(5)    One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa. The principles in paragraph 6.3 are as follows:
(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)    Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The considerations in the Direction that will be relevant in the present case may be significantly different from those in the usual case where the outcome of the Tribunal’s decision may determine whether an Applicant will be allowed to remain in Australia. This is especially evident in this case as regards the consideration of Australia’s international non-refoulement obligations.
As mentioned above, these proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. In the present case, the Applicant was refused a Bridging visa. He currently has an application for review before the Federal Circuit Court of the Tribunal’s decision of 15 January 2019 to affirm the decision to refuse him the grant of a Protection visa. If he is successful in his current application before the Tribunal then it is likely that he will be granted a Bridging visa and be freed from immigration detention. That Bridging visa is likely to remain until proceedings relating to his application for a Protection visa are ultimately determined. If he is unsuccessful in his current application before the Tribunal, he will remain an unlawful noncitizen and be required to remain detained pursuant to sections 189 and 196 of the Act. If he is ultimately successful and been granted a Protection visa, he will be allowed to remain in Australia. If he is not ultimately successful and been granted a Protection visa, it is likely that he will be removed from Australia pursuant to section 198 of the Act.
These proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application with his family in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that decision-makers should give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)   The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)   The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)   The cumulative effect of repeated offending;
i)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The offences which the Applicant has committed cannot be described as violent or sexual crimes. The offences were not of a violent nature and were not committed against women or children. The offences were not committed against vulnerable members of society or Government officials or representatives. The Applicant was found guilty on two occasions of possessing marijuana, no conviction was recorded and he was fined ($300 on the first occasion and $450 on the second occasion). While the Applicant committed two offences, the offences were at the lowest end of the spectrum in terms of seriousness. That is reflected by the fact that no convictions were recorded for the offences and the Applicant received only a fine for each of the offences.
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature. The Applicant has not sought to hide his criminal offending from the Department. The offences were not committed in another country. The offences were not committed while the Applicant was in immigration detention or during an escape from immigration detention.
As I have not found that the Applicant escaped from immigration detention, it cannot be said that the second offence was committed after the Applicant had escaped from immigration detention but before he was re-detained.
The Tribunal finds that the Applicant’s offences were not particularly serious and that the nature of the offences were that on two occasions he possessed a small amount of marijuana for personal use.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Paragraph 11.1.2(1) of the Direction provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) provides for the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. They are:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of intended stay in Australia.
Paragraph 11.1.2(4) of the Direction provides a decision-maker should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an Applicant reoffend in a similar manner will be obvious. This is especially so if an Applicant has previously committed violent or sexual offences. For example, if an Applicant has previously been convicted for assault occasioning actual bodily harm and he or she were to reoffend in a similar manner, the result would be that another member of the Australian community would be inflicted with actual bodily harm.
However, in a case such as the present it will not always be immediately apparent what the harm to the Australian community, or individual community members, may be as a result of future offending. In such cases it will often be insufficient for the Respondent to simply assert harm in his written contentions without providing any evidence to support those assertions. Whereas in some cases harm to the community will be obvious, and in others it may be appropriate, although not ideal, for Tribunal members to, in effect, take judicial notice of commonly accepted matters, in cases such as this one dealing with the potential impact of a man possessing cannabis on the community, it will often be necessary for the Respondent to adduce evidence of any potential claimed harm in order for the Tribunal to properly address this sub-consideration.
In the present case the delegate stated at [22]:
“…I am of the view that offences involving the possession of dangerous drugs are serious, given that such offending could contribute significantly to the presence of illicit drugs in the Australian community, with resultant negative impacts on the use of such drugs, drug-induced criminal offending and downstream community costs in terms of law enforcement and health.”[3]
[3] G Documents, G2, pages 9-19, Statement of Reasons for Refusal of a Visa under subsection 501(1) of the Migration Act 1958 (the Act).
There is simply no evidence before the Tribunal to make these findings responsibly. There is no evidence that the Applicant possessing a small amount of marijuana could contribute significantly to the presence of illicit drugs in the Australian community. Indeed such a notion seems inherently unlikely. There is no evidence before the Tribunal of the negative impacts of marijuana, noting that the evidence suggests that the marijuana possessed by the Applicant was only for his personal use. There is no evidence which suggests that the Applicant possessing marijuana would lead to drug induced criminal offending. The Applicant has not committed any drug induced criminal offending. There is no evidence of the “downstream community costs in terms of law-enforcement health” of the Applicant possessing a small quantity of marijuana for personal use.
To her credit, the Minister’s representative did not make any such unsupported submissions. Indeed, at the hearing the Minister’s representative appeared to concede that if the Applicant were to reoffend, the likely outcome would be that the Applicant would be in possession of a small quantity of marijuana for his own personal use.
The Tribunal has considered that if the Applicant were to consume marijuana he may be subject to the physical effects of marijuana consumption. However, without further evidence, it is not clear what those effects would be. The Tribunal has also considered that there might be some adverse effect to the Applicant’s partner and child if the Applicant were to consume marijuana in their presence. However, again, without further evidence, it is not clear what those effects would be.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There was no expert evidence in this matter as to the likelihood of the Applicant reoffending. The Respondent conceded that the Applicant had accessed mental health treatment while in detention and his claims to have participated in Bible study, peers support, anger management and drug and alcohol counselling.
In his written submissions the Respondent stated at [30]:
“However, the Applicant has not submitted any specific evidence from an independent or authoritative source to support this contention. In the Respondent’s submission, the Applicant’s history of disregarding the law, overstaying his visa and escaping immigration detention indicates that there is an risk that he will reoffend.”[4]
[4] Respondent’s Statement of Facts, Issues and Contentions, dated 5 April 2019.

As Deputy President Forgie stated in QKVH at [12],
“Overstaying a visa and so being in Australia as an unlawful non-citizen is not of itself criminal conduct for there is no criminal offence of that type.”
As mentioned previously, the Tribunal is not satisfied that the Applicant did in fact escape from immigration detention.
The Applicant has however been found guilty on two occasions of possessing a small quantity of marijuana for personal use. As mentioned above, the Tribunal has found that there is a risk that the Applicant could engage in this conduct again.
The Tribunal has considered the evidence of the Applicant and his partner that the Applicant will never consume marijuana again, primarily because, if granted a Bridging visa, he would not want to jeopardise his chance to remain in the community with his partner and child by being found guilty of marijuana related offences again.
The Tribunal considers that while there is a risk that the Applicant will come into possession of marijuana again and may be found guilty as a result, the Tribunal considers that this represents only a low risk.
The Tribunal notes that the Applicant was refused a Bridging visa by the Department on 30 August 2018 on the basis that the delegate was not satisfied that the Applicant would abide by the conditions of that visa. On 18 September 2018, the Tribunal remitted consideration of the Bridging visa application to the Department for reconsideration. In that decision, which was part of the G Documents, the Tribunal member in that case found that the Applicant would comply with condition 8564, the condition that the Applicant must not engage in criminal conduct.
Knowing that the Tribunal had found that the Applicant would not engage in criminal conduct, instead of granting the Applicant with a Bridging visa, the Minister’s delegate, on 4 October 2018, notified the Applicant of their intention to consider refusing the Bridging visa application on the basis that he may not pass the character test as there was a risk that he would engage in criminal conduct in Australia. The Minister's delegate refused the Applicant’s application for a Bridging visa on this basis on 1 February 2019.
The Tribunal considers that the approach taken by the Minister’s delegate appears to be curious given the Tribunal’s then recent finding that the Applicant would not engage in criminal conduct. In any event, I consider that my finding that there is only a low risk that the Applicant will reoffend is consistent with the Tribunal’s previous finding that the Applicant would comply with the condition not to engage in criminal conduct.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offences were not particularly serious and that the nature of the offences was that on two occasions he possessed a small amount of marijuana for personal use.
The Tribunal has found that it is unclear, what if any harm, would be caused to individuals or the Australian community should the Applicant reoffend. Indeed, the most obvious effect of the Applicant reoffending by possessing marijuana would appear to be that he may suffer from any effects of the consumption of that marijuana.
The Tribunal has taken into consideration the principle that Australia has a low tolerance of any criminal conduct by visa applicants. The Tribunal has also considered that it is likely that the Applicant will remain in Australia until the proceedings relating to his application for a Protection visa are ultimately determined.
After giving thought to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration is a neutral consideration in this case. The Tribunal considers that: the Applicant’s conduct in the past is not particularly serious; there is a “low” likelihood that the Applicant will reoffend; and if the Applicant were to reoffend, any negative effects would be primarily those associated with him consuming a small amount of marijuana.
In effect, the Tribunal finds that there is a negligible, if any risk to the Australian community presented by the Applicant residing in the community while he awaits the ultimate outcome of the proceedings relating to his Protection visa application.
The Tribunal attributes neutral weight to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 11.2(2) and 11.2(3) of the Direction respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 11.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
a)     “The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)     The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)     The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)     The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)     Whether there are other persons who already fulfil a parental role in relation to the child;
f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)     Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)     Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
The Applicant has daughter who is almost 2 years of age. The Applicant was either living with the child, or was able to physically visit the child between her birth on 16 May 2017 and his detention on 2 June 2018. It does not appear that the Applicant has had any physical contact with his daughter since that time.
The Tribunal would describe the nature of the relationship between the Applicant and his child as a parental one marked by a significant period of absence owing to his detention.
The Tribunal considers that if the Applicant were allowed to return to his family, outside immigration detention, the Applicant is very likely to play a positive parental role in his child’s life. The evidence from the Applicant and his partner was that if the Applicant were released from detention, the Applicant would be the primary caregiver of the child and his partner would return to work. The Tribunal has heard evidence, which it accepts, that the child desperately wants her father to return to her and has suffered physically and emotionally from the separation from her father. The Tribunal also accepts that the child would be much better off financially if the Applicant were released from detention so that his partner can return to full-time work and provide for the family financially.
If the Applicant is not granted a Bridging visa allowing him to reunite with his partner and his child, the Tribunal considers that his child will continue to be negatively affected as described above. Given the child’s age, the Tribunal considers that the Applicant and his child cannot maintain any meaningful contact over the telephone or by other electronic means. In any event, the Tribunal finds that this is, of course, no substitute for the child being able to live with the Applicant.
The Tribunal has considered that the Applicant’s partner currently fulfils the primary parental role in relation to the child.
As the child is less than 2 years old, the Tribunal has not heard any express evidence from her in relation to whether she wishes for her father to be released from immigration detention. However, from the evidence given by the Applicant and his partner, the Tribunal accepts that the child, who desperately misses her father, would want her father to be released from immigration detention and return to her.
There is no evidence that the Applicant has abused or neglected the child. There is no direct evidence that the child has suffered any physical or emotional trauma arising from the Applicant’s conduct other than the effects of separation mentioned previously.
Conclusion: Primary Consideration B
The Tribunal finds that it is in the best interests of the Applicant’s child for the Tribunal to set aside the decision to refuse to grant her father a Bridging visa.
The Tribunal finds that the best interests of the Applicant’s child weighs heavily in favour of the Tribunal setting aside the decision to refuse to grant her father a Bridging visa.
The Tribunal attributes significant weight to the primary consideration of the best interests of minor children in Australia.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 11.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
In Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (“Doan”) I found that the decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”) establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
In Doan, I found that the primary consideration of expectations of the Australian community may weigh in favour or against whether or not to revoke cancellation. While Doan involved consideration of paragraph 13.3(1) of Part C of Direction 65 and the present case involves consideration of paragraph 11.3(1) of Part B of Direction 79, there are no material differences between these two paragraphs.
In addition, the fact that Direction 79 is relevant to this case, rather than Direction 65, has no material bearing on this case. The differences between Directions 65 and 79 are primarily that the latter Direction directs that crimes against women and children are serious regardless of the penalty imposed for such crimes. The Applicant has not harmed women or children in the past and there is no evidence that he will do so in the future.
In YNQY, Mortimer J accepted that the expectations of the Australian community consideration is inextricably linked to the other primary consideration of protection of the Australian community. There is no doubt that this is the case, especially considering that the weight of the principles in paragraph 6.3 of the Direction relate most directly to the protection of the Australian community and the expectations of the Australian community regarding its protection.
Thus, the Tribunal considers that, in both the matters that the Tribunal considers in relation to the expectations of the Australian community, and the weight to be attributed to those expectations, the Tribunal should give appropriate weight to consideration of the expectations of the Australian community regarding its protection.
However, in Doan I found that, in addition to the matters provided for in paragraph 13.3(1) of Direction 65 (which are relevantly identical to those in paragraph 11.3(1) of the Direction) and the various principles in paragraph 6.3 of the Direction which inform the expectations of the Australian community regarding its protection, the Government’s views in relation to community expectations are also informed by:
·whether a non-citizen has lived in the Australian community for most of their life or from a very young age (see paragraph 6.3(5) of the Direction);
·the length of time a non-citizen has been making a positive contribution to the Australian community (see paragraph 6.3(7) of the Direction); and
·the consequence of visa refusal or cancellation for minor children and other immediate family members in Australia (see paragraph 6.3(7) of the Direction).
Since my decision in Doan, the Federal Court, on 11 April 2019, handed down two decisions which have particular relevance to the determination of the expectations of the Australian community consideration. Those cases are: FYBR v Minister for Home Affairs[2019] FCA 500 (“FYBR”); and DKXY v Minister for Home Affairs[2019] FCA 495 (“DKXY”).
In FYBR her Honour Perry J concluded at [42]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
In TGXY and Minister for Home Affairs (Migration) [2019] AATA 757 (“TGXY”) (handed down on 24 April 2019) I found that this conclusion was consistent, for the most part, with the reasoning that was employed in Doan which employed the principles developed in Uelese; Afu and YNQY.
In DXKY his Honour Griffiths J found that while the Government’s views regarding the expectations of the Australian community must be given due regard, so must all other circumstances which are relevant in a particular case. This interpretation appears to be much broader than that taken in the authorities mentioned above where those authorities appeared to limit consideration of the expectations of the Australian community to the views expressed by the Government in the Direction as to the expectations of the Australian community.
In TGXY I found that, as the weight of Federal Court authority appeared to adopt a somewhat narrower view than that taken by Griffiths J, the Tribunal considered that it should follow the weight of authority which provides for the principles that I set out in Doan and mentioned above.
However, in TGXY, I found that my interpretation of paragraph 8(3) of the Direction, that all of the primary and other considerations may each individually weigh either for or against an Applicant, was supported by the decision in DKXY. Similarly, I considered that my conclusion in Doan that the Government’s views regarding the expectations of the Australian community are informed by the principles in paragraph 6.3 of the Direction, was also supported by the decision in DKXY.
The Tribunal considers that its approach to the expectations of the Australian community primary consideration is consistent with that adopted by Deputy President Boyle in Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751 (“Subasinghe”) which was handed down on the same day as TGXY and also considered the decisions in FYBR and DXKY. In Subasinghe, Deputy President Boyle stated at [71]:
“The more common approach, however, and one with which this Tribunal agrees, is that her Honour’s comments in YNQY, in particular the operation of the ‘kind of deeming provision’ (YNQY at [76] – see [65] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where ‘the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa’. That was the approach taken by Member Eteuati in Doan and Minister for Home Affairs [2019] AATA 169 at [185]- [208]. …”
The Tribunal also considers that its approach to the expectations of the Australian community is broadly consistent with that taken by Member Burford in Toki and Minister for Home Affairs (Migration) [2019] AATA 742, in which the learned Member had also considered the recent decisions in FYBR and DKXY.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. The Tribunal has taken into account that Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. The Tribunal has also taken into account that Australia has a low tolerance of any criminal conduct by visa applicants.
Against these factors, in the present case the Tribunal does not consider that there is an unacceptable risk to the Australian community presented by the Applicant reoffending. In this case the Tribunal does not consider that visa refusal is appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should be granted a visa.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that the Australian community would place weight in the Applicant’s favour on the severe negative consequences of refusal of a Bridging visa on the Applicant’s child and his partner: see paragraph 6.3(7) of the Direction.
Conclusion: Primary Consideration C
The Tribunal accepts that the Applicant breached the expectation of the community to abide by the law and that the community has a low tolerance for any criminal conduct by visa applicants who have only been in the community for a short period of time.
However, the Tribunal has found that there is a negligible, if any, risk to the Australian community presented by the Applicant residing in the community while he awaits the ultimate outcome of the proceedings relating to his Protection visa application. In addition, the Tribunal considers that the Australian community would place weight in the Applicant’s favour on the severe negative consequences of refusal of a Bridging visa on the Applicant’s child and his partner.

Overall, the Tribunal finds that the Australian community would consider the negligible risk of future harm to the community is acceptable and that the Applicant should not be refused the grant of a Bridging visa so that he may await the ultimate outcome of the proceedings relating to his Protection visa application in the community with his partner and their child.
The Tribunal finds that this consideration weighs against refusal of a Bridging visa to the Applicant. The Tribunal places moderate weight, in the Applicant’s favour, on the primary consideration of the expectations of the Australian community.
OTHER CONSIDERATIONS
Paragraph 12 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
International non-refoulement obligations
Paragraph 12.1 of the Direction provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
In the present case the Applicant made an application for a Protection visa which was refused by the Minister’s delegate on 7 August 2018. That decision was affirmed by the Tribunal on 15 January 2019. The Applicant has sought judicial review of that decision in the Federal Circuit Court, and that application has yet to be determined.
If the Applicant is ultimately successful in being granted a Protection visa he will be permitted to remain permanently in Australia and there should be no risk that Australia will breach its non-refoulement obligations in respect of the Applicant.
If the Applicant is not granted a Protection visa, or another visa to remain in Australia permanently, there appears to be a risk that the Applicant may be removed from Australia in breach of Australia’s international obligations: see my decision in CCYW and Minister for Home Affairs (Migration) [2019] AATA 241 at [153] – [156].
However, as mentioned above, these proceedings will not determine whether the Applicant is “allowed to enter or to remain in Australia.” Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application with his family in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.
As such, the outcome in these proceedings will have no bearing whatsoever on whether the Applicant will be returned to Fiji in breach of Australia’s non-refoulement obligations.
In those circumstances, this consideration is not relevant to the present proceedings.
Impact on family members
Paragraph 12.2 of the Direction provides:
“Impact of visa refusal on immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.”
The Applicant has a long-term partner and a child in Australia. Both the Applicant’s partner and his child hold Class TY Subclass 444 (Special Category) visas, giving them a right to remain in Australia indefinitely.
These proceedings will not determine whether the Applicant is allowed to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application with his family in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.
If the Applicant is refused a Bridging visa, his partner and his child would be deprived of living with the Applicant in Australia pending the ultimate outcome of proceedings relating to his Protection visa application. As mentioned previously under the primary consideration of the best interests of children, this would have an ongoing significant adverse effect on the Applicant’s child, both emotionally and financially, and possibly physically. The Tribunal also finds that refusal of a Bridging visa to the Applicant would have a severe adverse effect on the Applicant’s partner.
If the Applicant was granted a visa and was released into the community, he would be able to provide primary care for his young daughter and his partner would be able to return to work to provide financially for the family. The Applicant’s partner and his daughter would also have the emotional benefit of having the Applicant live with them.
The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on the Applicant
The Tribunal has also considered the effect of refusal of a Bridging visa on the Applicant. While this consideration is not listed in paragraph 12 of the Direction, the matters which can be taken account into account as other considerations are not limited to the matters listed in that paragraph. The Tribunal considers that refusal of a Bridging visa would have a significant negative effect on the Applicant.
If the Applicant is refused a Bridging visa, he would be deprived of living with his partner and child in Australia pending the ultimate outcome of proceedings relating to his Protection visa application
The Tribunal finds that this consideration weighs in favour of setting aside the decision to refuse the Applicant a Bridging visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
Impact on victims
Paragraph 12.3(1) of the Direction provides:
“Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal;”
There is no readily identifiable ‘victim’ of the Applicant’s criminal behaviour in this application. The Applicant’s partner and his child are members of the Australian community but the impact on them of a decision to grant the Applicant a Bridging visa has been considered above under the consideration of “Impact on family members.” Therefore, the Tribunal places no weight on this consideration.
Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
Conclusion: should the power to refuse the Applicant a visa be exercised?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs neutrally in this case. The Tribunal has found that that there is a negligible, if any risk to the Australian community presented by the Applicant residing in the community while he awaits the ultimate outcome of the proceedings relating to his Protection visa application.
The Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against visa refusal. The Tribunal has found that the primary consideration of the best interests of minor children, in this case, the Applicant’s daughter, weighs significantly against visa refusal. The Tribunal has found that the considerations of impact on the Applicant and his family members each weigh significantly against visa refusal. The Tribunal has found that the Applicant, his partner and his child will be significantly adversely affected if the Applicant is not granted a Bridging visa.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that all of the relevant considerations in this case (except for the protection of the Australian community consideration to which I have attributed neutral weight) weigh against visa refusal.
Ultimately, the relevant question in this case is whether the negligible risk that the Applicant presents to the Australian community is unacceptable such as to prevent the Applicant from being allowed to await the ultimate outcome of proceedings relating to his Protection visa application with his partner and young child in the community. Notwithstanding that I have found that there is some risk, however low, that the Applicant will consume marijuana if released, and some risk that he may not depart Australia immediately if he is not ultimately successful in being granted a substantive visa, the Tribunal finds that the negligible risk that the Applicant presents to the Australian community is acceptable in this case.
The Tribunal notes that it has also considered whether it would have exercised the discretion to refuse the Applicant a Bridging visa if it had accepted that the Applicant had, in fact, escaped immigration detention. The Tribunal has concluded that even if it had accepted that the Applicant escaped from immigration detention, it would have come to the same conclusion regarding the exercise of the discretion in section 501(1) of the Act.
The Tribunal has found that the Applicant does not pass the character test but has decided that the discretion to refuse the Applicant a Bridging visa should not be exercised.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse the Applicant’s application for a Bridging visa, should be set aside and that the matter be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised. The Tribunal considers that this is the preferable decision in this case.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised.

178.    I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

....................................................................
Associate
Dated: 29 April 2019

Date of hearing:

17 April 2019

Applicant:

Self-represented, appearing via Video link

Solicitor for the Respondent:

Laura Crick

Clayton Utz Lawyers

ANNEXURE 1 - EXHIBIT REGISTER
File No       2019/0633..................................................................................................................
Between     QQYJ......................................................................................................... (Applicant)
And          Minister of Home Affairs........................................................................... (Respondent)
Heard on    Wednesday.................................... the 17th ......... day of April.................. 2019.........
At             Brisbane....................................................................................................................
Applicant’s Evidence

Exhibit Number Description of Evidence

A1 Applicant’s Statement of Facts, Issues and Contentions dated 19 March 2019, with annexure A (Direction 79)

A2 Statement of the Applicant’s de fact partner, dated 22 March 2019

A3 Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions dated 12 April 2019

Exhibit Number	Description of Evidence
A1	Applicant’s Statement of Facts, Issues and Contentions dated 19 March 2019, with annexure A (Direction 79)
A2	Statement of the Applicant’s de fact partner, dated 22 March 2019
A3	Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions dated 12 April 2019