RBPQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4842

RBPQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4842 (28 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6577
Re:RBPQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:28 November 2023
Date of written reasons: 21 December 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
....................[Sgnd].............................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – refusal of bridging visa – Migration Act – whether to exercise statutory discretion to refuse bridging visa – section 501(1) – Direction 99 – one instance of very serious offending – very low risk of re-offending – community expectations consideration weighs substantially against applicant – applicant has visa-related application pending in the Federal Court – applicant unable to obtain legal representation in detention – applicant has a legitimate interest in being released into the community to earn money and to engage counsel to assist him in the presentation of his case – limited nature of bridging visa adverted to – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
21 December 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish. These are the reasons I read out to the parties with relatively minor amendments.[1]
[1] These reasons contain certain standard paragraphs, especially [4] and [27].
This is an application by “RBPQ”, a person whose name is subject to a confidentiality requirement and to whom I shall refer as “the applicant”. The applicant seeks a review of a decision to refuse him a Bridging E (Class WE) visa. This decision was made on 31 August 2023 under s 501(1) of the Migration Act 1958 (Cth) (“the Act”). The responsible delegate decided, first, that the jurisdictional threshold for refusing the visa was satisfied (namely, that the applicant did not satisfy the “character test” under section 501 because he had been sentenced to a lengthy term of imprisonment of 18 months); and, secondly, that it was appropriate to refuse the visa in the exercise of the statutory discretion conferred by subsection (1).[2]
[2] The delegate’s reasons appear at Ex R2, 15ff.
In addressing the exercise of the statutory discretion, the delegate was required to apply any direction issued under s 499 of the Act. The delegate applied Direction no 99 (“the Direction”).[3]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Like the delegate, I must address the same two issues. Given the applicant’s sentence of imprisonment, the delegate clearly answered the first question correctly in my opinion.[4] In respect of the second question concerning the exercise of the discretion, I too must apply the Direction. In conducting its review in respect of this question, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[5] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[4] See sections 501(6)(a) and (7)(c) of the Act.
[5] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
The applicant represented himself in the hearing before me, but was assisted in the presentation of his case by a fellow detainee at the Yonga Hill Detention Centre; Mr Chan represented the respondent. I note Mr Chan’s very fair and reasonable conduct of the case on behalf of the respondent, which well fulfilled the respondent’s model-litigant obligations. An interpreter was made available for the applicant’s benefit.[6]
[6] In Farsi (or Persian), the language spoken in Iran.
STATEMENT OF CONCLUSION
I have concluded that I should set aside the decision under review and substitute a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Act. I now turn to set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The applicant is a citizen of Iran who was born in 1987. He was, therefore, 36 years of age at the time of the hearing before me, although in his oral evidence the applicant said he was 37. Nothing turns on this minor discrepancy, however. He arrived in Australia by boat on 17 July 2013. He did not have permission to enter Australia, but eventually sought, as I understand matters, protection from Australia as a refugee from Iran upon arrival. The applicant has never held a visa in Australia since his arrival (apart from bridging visas).
It would appear from the records before me that the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”), which is a form of protection visa under the Act, on 27 September 2017.[7] It is not clear to me why that application was so long in the making. Presumably, the applicant’s continued residence in the community at that time was facilitated by a bridging visa or visas of some sort. The application for a SHEV was rejected by a delegate of the Minister on 18 October 2021. The Immigration Assessment Authority reviewed the initial decision, and in December 2021 it affirmed the decision not to grant the applicant a SHEV. The Authority decided against the applicant on the merits.[8]
[7] Ex R3, 233.
[8] Ibid, 232ff.
The applicant has recently initiated judicial-review proceedings in respect of the Immigration Assessment Authority’s decision. I was informed at the hearing that the applicant requires an extension of time to initiate those proceedings and that the extension-of-time application is listed before the Federal Circuit Court on 8 December 2023.
One of the arguments that the applicant has advanced before me is that he has unable to obtain legal representation (in the form of a barrister’s services) while he has been in detention. He wishes to be released into the community, work (with permission) and earn money so as to be able to afford to engage a barrister to assist him in the presentation of his case, first, for an extension of time and, if he is successful, on the judicial-review application proper. It is for this reason that he seeks a bridging visa.
I shall consider that aspect of the matter in due course.
I turn now to the applicant’s background in Iran. I accept the applicant’s evidence that he has no family in Australia and that all his family members continue to live in Iran. He has never been married. The applicant had been working in Iran as the supervisor of a council gym or sports centre. He left Iran by air and travelled to Australia via Malaysia and Indonesia, he said. He does not deny that he arrived in Australia without legal permission to do so. His evidence to me was that he feared for his life in Iran as he had participated in anti-government demonstrations and was considered to be a threat to the regime. He said he had spent time in jail as a result of his anti-government activity where he was subjected to torture. I need not finally decide as part of my review, however, whether these claims are, or are not, true, or whether they are at least plausible.[9]
[9] In saying this, I do not intend to imply that I necessarily have any reason to doubt the correctness of the Immigration Assessment Authority’s decision and reasons, which I have read and were in evidence before me.
The applicant gave evidence that upon arrival in Australia he was first taken to Christmas Island. From there, he was transferred to Darwin, from Darwin to the Curtin Detention Centre, and finally to Sydney, at which time he was granted a bridging visa. He believes he began residing in Sydney some time in 2014. His evidence to me, which I accept, is that he has worked regularly, although not continuously, in the building and painting trades. He asserted that he has a romantic interest in a person in Australia, but said that the matter has not progressed. He has no children in Australia, nor does he have any children in Iran.
I turn now to describe the applicant’s criminal record in Australia, which was before me. In 2021, the applicant was convicted in the Parramatta Local Court of driving a vehicle without ever having been licensed to do so. He was fined $750 on that occasion. In 2022, he was convicted of possessing a prohibited drug. There was a conviction, but no other penalty. I note that these are the only two offences in the applicant’s Australian record apart from the very serious offence which I am about to describe.
There are no sentencing remarks before me in respect of this serious offence, and I was informed that the respondent was not able to find any. I did have before me, however, the agreed facts that were used in the applicant’s sentencing.[10] On 24 October 2020, a man was kidnapped from residential premises and bundled into a van. The victim was then transferred to another vehicle, which was driven to the applicant’s rented home (a self-contained unit or “granny flat” at the back of a residential property as I understand matters). The victim was detained there. He was assaulted and punched numerous times and threatened with serious physical harm and, indeed, with death. He was blindfolded and tied up during his ordeal in the applicant’s unit. He was detained for some three days while demands were made of his family for a very large sum of money. He was eventually driven to a car park where he was left. A passer-by summoned assistance and he was taken to hospital. The victim received numerous bruises to his upper body from being assaulted, and cuts and bruises to his wrists and ankles from being tied up.
[10] Ex R3, 8ff.
The applicant was arrested in April 2021. He pleaded guilty to the serious offence of taking or detaining a person in company with an intention to seek a ransom. He was sentenced on the following basis which was agreed between the parties:
(a) The basis of the offender’s liability is that he allowed the use of his premises and agreed to his premises being used to detain the victim; and
(b) The Crown cannot prove beyond a reasonable doubt that the offender assaulted or threatened the victim during his detention; and
(c) The Crown cannot prove beyond a reasonable doubt that the offender knew the amount of money that was going to be asked by way of ransom or that he was going to receive any of that money; and
(d) The Crown cannot prove beyond a reasonable doubt that the offender made any ransom demands of the victim’s family; and
(e) The Crown cannot prove beyond a reasonable doubt that the offender participated in or agreed to the kidnapping of the victim on 24 October 2020.[11]
[11] See Ex R3, 11-12.
The applicant was sentenced in July 2022 to a term of imprisonment of 18 months, to be backdated to commence on 19 April 2021 (the date on which he was first taken into custody). He received a 25 per cent discount. His non-parole period was set at 12 months, and he was eligible to be released on parole from 18 April 2022 onwards.[12] For reasons that are not clear to me and that could not be elucidated by either party at the hearing, it would appear that the applicant spent approximately a further month in prison after sentencing (namely, from July 2022 to August 2022) before being paroled. At that point he was taken into detention as he did not have a visa. I assume that any bridging visa he had held was terminated as a result of his conviction. His detention on release from gaol was required. He has been in immigration detention since August 2022. His sentence has now expired, and he is no longer subject to parole conditions.
[12] Ibid, 4.
The applicant denied his involvement in the kidnapping. The version of events he gave in his evidence to me was as follows. He said that a friend, a man named “Ali”, had asked whether he could use the unit as he had sometimes done in the past. The applicant agreed. The applicant asserted that he did not know that the unit was to be used as a place of detention for a kidnappee. He said that when he came home, he was himself detained for a number of days and was prevented from using his phone (except to make international calls). Eventually, after three days, the kidnappers left with the victim (namely, in late October 2020). He said he was warned by Ali not to contact police, and he decided not to contact the police about the matter.
Eventually, however, the police discovered that the applicant’s unit had been used to detain the victim, and the applicant was arrested in April 2021.
In my opinion, the applicant’s evidence that he did not agree to his premises being used for the victim’s detention should be rejected. The applicant’s evidence contradicts the agreed statement of facts before the Court and is, indeed, inconsistent with his guilty plea.
I accept that I should rely on the agreed facts. The basis of the applicant’s guilt and of his plea appears in paragraph (a).[13] The prosecution could not prove beyond reasonable doubt the matters referred to in paragraphs (b) to (e). Had they been provable to the requisite standard, they would have amounted to circumstances of aggravation (or formed the basis of separate counts).
[13] As set out in paragraph [16] above.
No evidence was led by the respondent in respect of the matters appearing in paragraphs (b) to (e), and I do not believe I should depart from the agreed basis of sentencing. I do not accept that, sitting as an administrative tribunal, I should find that the applicant was guilty of the matters referred to in paragraphs (b) to (e) without such evidence.
That does not mean, of course, that the applicant was not guilty of a most serious offence. It is clear that the applicant agreed to the use of his flat as a place where the victim would be detained. To my mind, it does not much matter that the applicant did not himself assault or threaten the victim or know what ransom amount had been demanded. Equally, it does not matter that he had not made a ransom demand himself or that he had not been part of the group that first agreed upon, and then executed, the kidnapping.
I say this because in voluntarily making his unit available for the purposes of detaining the victim, the applicant facilitated the victim’s mistreatment by others and willingly participated in an ongoing crime. The applicant knew the victim was likely to be assaulted in his unit, knew that a ransom demand was likely to be made, and knew that the victim, while in the applicant’s unit, would be under the enormous psychological strain of not knowing his fate.
The applicant’s application for a SHEV (lodged some years earlier) was finalised while the applicant was in gaol, namely, in October 2021 as I have earlier noted. The application was rejected. The Immigration Assessment Authority in its review in December 2021 concluded that the applicant was not a “refugee”, as defined in the Act, and did not meet the criteria specified for complementary protection. The Authority’s reasons were before me.[14]
[14] Ex R3, 232ff.
On 22 June 2023, the applicant applied for a Bridging Visa E in connection with the judicial-review application that he had filed in respect of the Immigration Assessment Authority’s decision. The application for judicial review is noted to have been lodged on 6 June 2023.[15] As I have mentioned, the application for judicial review requires an extension of time before it may proceed, and that application has apparently been set down for hearing before the Federal Court on 8 December 2023.
REASONS
[15] See Ex R2, 55.
Considerations arising under the Direction
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat here:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.

I now turn to apply the Direction. I should say immediately that I do not regard the earlier offending of the applicant in Australia (together with his driving offence in Iran) as constituting a “tipping-point” in my decision-making, and, accordingly, I leave these offences out of consideration. I do not need to deal with them further. The kidnapping offence is clearly of critical importance so far as the applicant’s offending is concerned.
I turn now to consider the primary considerations. I must consider the protection of the Australian community. Without setting it out in these oral reasons, I bear in mind what appears in paragraph 8.1(1).
I must have regard also to the nature and seriousness of the applicant’s conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. In considering the nature and seriousness of the applicant’s conduct to date, I must have regard to a number of matters specified in subparagraphs (a) to (h) of paragraph 8.1.1(1) of the Direction. It is clear that the applicant’s participation in the kidnapping is a most serious crime which must be taken very seriously under the Direction. It was a violent crime and falls within subparagraph (a)(i). The Court’s sentence was lengthy and marked out the gravity of the offending.
There has been no particular frequency in the applicant’s offending although given the two earlier relatively minor offences, it must be said that there was a marked escalation in the trend of the applicant’s offending. There has been no repeated offending of any single type of offending, but there has been an admitted and persistent misuse of drugs, and I take that into account.
I must also consider the risk to the Australian community. I bear in mind the principle that appears in paragraph 8.1.2(1) of the Direction. I acknowledge the force of what appears in that paragraph; namely, 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. This has caused me to be very careful in my assessment.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to a number of matters “cumulatively”. These matters are set out in of subparagraph (2). Subparagraph (2)(a) requires me to consider the nature of the harm that would be caused to individuals or the community should the applicant engage in further criminal or other serious conduct. Here it is very clear that any further criminal activity of the type in which the applicant has engaged would pose the most serious risk to the Australian community. Kidnapping can lead to the most serious psychological and physical consequences for victims and can also lead to death, of course.
I must have regard to the likelihood of the applicant engaging in a kidnapping crime again: see subparagraph (b). Subparagraph (c) also directs me to assess whether the risk of harm may be affected by the type of visa being applied for, which in this case is a Bridging E visa sought in connection with the applicant’s judicial-review application.
So far as risk is concerned, I note again that the applicant did not accept his guilt before me. He claimed to be a victim of the other kidnappers. As I have said on many occasions in the past, where an applicant does not accept his or her guilt, I cannot infer a lower risk on account of genuine insight and remorse. I accept that applicants are under some pressure before the Tribunal to attempt to minimise their crimes in the hope that a less unfavourable view of their offending will assist them. Where an applicant takes this ill-advised course, however, I cannot proceed on the basis that he or she has developed genuine insight and remorse.
When applying this part of the Direction, however, I am required to focus on risk rather than remorse as such. The kidnapping crime is an unusual one for this applicant in the sense that he has no criminal history either in Iran or in Australia that would explain such a dramatic increase in the seriousness of his offending. It appears to be a “one-off” decision he took. Why he took that decision is unclear on the evidence before me. It may have been for money or it may have been simply to assist the kidnappers or his friend Ali. I simply do not know. It would appear on the evidence before me that the applicant had been abusing both ice and alcohol up to the time of his arrest. It is not clear, however, on the evidence before me, whether those issues had anything to do with his decision to participate in the kidnapping by making his unit available for the victim’s detention.
I bear in mind, as the Direction requires me to do,[16] the pre-release report where the opinion is offered that the applicant has been assessed as a low/medium risk of reoffending according to the “Level of Service Inventory”.[17]
[16] See paragraph 8.1.2(2)(b)(i).
[17] Ex R3, 61.
I have had regard to that conclusion, but I assess the applicant’s risk of reoffending as very low. The kidnapping has resulted in a significant gaol sentence and the applicant has now spent a further 15 months in detention after leaving gaol. He “hangs by a thread”, if I may use that expression, so far as his continued residence in Australia is concerned. He could hardly believe that participation in any further crime would see him remain in the community in Australia. To the contrary, he well appreciates that he may be refused visas on character grounds if he commits further crimes. Indeed, his protection visa may yet be refused on character grounds, assuming he gets as far as securing a further consideration of the merits of his claim for protection. He may not appreciate the intricacies of Australia’s legal regime, but he has the lived experience of knowing that crime leads to the rejection of visas and that it leads inevitably both to jail and detention pending deportation.
Furthermore, the visa that the applicant seeks is a limited one only, and the Direction specifically requires me to have regard to the type of visa in question when assessing risk: see paragraph 8.1.2(2)(c). The duration of the bridging visa is difficult to predict, but it is not unlimited. The visa may prove very short. If the applicant is unsuccessful in gaining an extension of time, that may well mean the end of his right to seek a substantive visa in Australia. As a logical possibility, it may be that he is successful in obtaining an extension of time in connection with his judicial-review application. If he is successful, some time may elapse before his judicial-review application is heard and finally determined by a responsible Court, and of course, if he is successful in overturning the decision, there would have to be a further re-consideration of his application for a protection visa. The bridging visa would prove to be a prolonged one in that case. Even in that circumstance, however, the bridging visa the applicant seeks, even if prolonged, will not be unlimited in duration. It will have to come to an end at some point.
The applicant has indicated that he plans to move to Melbourne and to live with a friend there and to work (provided he is given permission to work as a condition of his bridging visa). That plan is supported by the evidence on file, and I refer in that regard to the letter dated 5 November 23 from Mr Tizmehr.[18] There is therefore a plan in place that would see the applicant removed from poor associations in Sydney: he would have a stable environment and work (if the bridging visa permits him to work).
[18] This letter appears as part of Exhibit A1.
All in all, I regard the risk of a recurrence of this type of offending as very low.
The risk of recidivism is, however, a matter to be considered “cumulatively” with the nature of the harm that the Australian community would be subjected to if there were a recurrence of the conduct in question. I note that.
Family violence does not arise as a consideration in this case.
I accept that the applicant has no family ties to Australia. I accept that he has worked in Australia, and apparently well given the tenor of the reference from Mr Hamed.[19] There is a suggestion in some of the support letters that he has friends who will miss him, and that he has been something of brother to a friend and an uncle to that friend’s son (see letter from Mr Vijeh) and also a close friend to a Mr Al-Khazaal.[20] He has also been a considerable support to a single parent (Ms Aravand)[21] and has befriended and supported Mr Tizmehr, who has offered him support.
[19] This reference appears as part of Exhibit A1.
[20] These appear as part of Exhibit A1.
[21] Ibid.
So there has been, in my opinion, some positive community contribution in terms of work, and he has built something of a circle of friends and has contributed to their lives. But the relationships are those of friendship, not family as such.
Moreover, and this is the most important feature, I am only concerned with the bridging visa, which can only be a visa of limited duration. A bridging visa would restore the applicant’s one-on-one contact with friends and their families, but only to a limited degree. I am not concerned with the substantive visa, namely the protection visa.
In my opinion, the ties-to-Australia consideration counts neutrally.
For the same reason, I believe the best interests of minor children in Australia count neutrally. In particular, Mr Vijeh’s son’s interests do not count substantially when I weigh the question of a bridging visa.
I must consider the expectations of the Australian community: paragraph 8.5. This is an important consideration and it counts substantially against the applicant. Subparagraph (1) of paragraph 8.5 makes it clear that, “as a norm”, there is an expectation that the applicant not be allowed to remain in Australia given his very serious conduct in breach of the expectation that he should obey Australian laws while in Australia. Subparagraph (2) requires me to have regard to the consideration that it may be appropriate to refuse a visa simply because the nature of the offence in question is such that he should be refused a visa. A non-exhaustive list is given in subparagraphs (a) to (f) of subparagraph (2). Kidnapping is a most serious offence, and the nature of that offence does give rise to the most serious concerns. I must bear that in mind. I note that by subparagraph (3) of paragraph 8.5, the expectations that are detailed in the paragraph apply whether or not the applicant poses a measurable risk of causing physical harm to the Australian community. I must apply the expectations, moreover, without independently assessing expectations in a particular case: see subparagraph (4). As I have said, this consideration counts substantially against the applicant.
I must have regard to so-called “other” considerations under section 9 of the Direction. There is a non-exhaustive list of these considerations. In my opinion, whether it is styled a legal consequence of my decision or whether it is simply another consideration that falls outside the four considerations mentioned in paragraph 9(1), I should have regard to the applicant’s submission to me that he seeks an opportunity to return to the community so that he can engage a barrister and earn money to pay for a barrister’s services. He wishes to engage a barrister to maximise his chances of securing an extension of time and of successfully pursuing his judicial-review challenge.
I am not in a position to estimate the likelihood of the success of that application. It may be appropriate for a Court to scrutinise more closely than it might otherwise the prospective merits of a judicial-review application when the applicant is well outside time, as is the case here: see, for example, most recently JSMJv Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466. But it is not my task, I believe, to speculate as to what is likely to happen to the applicant’s application for an extension of time. I simply do not know anything meaningful about the matter. I am prepared to proceed on the basis that if I set aside the decision under review the applicant could advise the court on 8 December 2023 that he had received a favourable determination from this Tribunal, and that as a consequence he may well receive a bridging visa in due course.[22] The Court may adjourn the application for an extension of time to allow the applicant time to secure the services of a barrister. I accept that being in a detention centre does cause problems for the applicant in the presentation of his case. He has at some point in the past engaged the services of a solicitor who made the application for a bridging visa for him,[23] but there was no solicitor or barrister representing him before me, and I accept the applicant’s evidence that as a practical matter he must leave detention and earn money in order to engage a barrister and consult with him or her effectively. That is an important aspect of the matter, and it weighs substantially in his favour. I also bear in mind that I am not concerned with any permanent right of the applicant to remain in the community but simply with the issue of a bridging visa that would be limited in duration, even if the duration cannot be confidently predicted at this stage.
[22] If he has not already received one as a result of my decision on 28 November 2023.
[23] Ex R2, 55.
Weighing the Considerations
I turn now to weighing the various considerations. The Direction gives greater weight as a general rule to primary considerations: it is quite explicit in this regard.[24] But case-law has made it clear that “another consideration” under section 9 may outweigh primary considerations depending on the circumstances of the case.[25]
[24] See paragraph 7(2) of the Direction.
[25] See, for example, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [35].
This case is most unusual. The offending with which I am concerned has been of the most serious kind. On the other hand, there is only this one instance of serious offending in the applicant’s short criminal record. I accept that he is at a very low risk of reoffending for the reasons I have given. I also note that I am concerned only with a bridging visa, which as I have said is a limited visa only and which will not give the applicant a right to remain in Australia on a permanent basis if it is granted.
The applicant has participated in a crime that had the potential to see the infliction of very serious injury upon a victim, and indeed I should assume at least ongoing psychological effects for the victim if not ongoing physical effects.
But I have also concluded that the applicant has a legitimate interest in consulting effectively with a barrister. As a practical matter, that requires his release from detention and the possibility of his earning money to defray the expense of a barrister’s services in connection with his judicial-review application. I cannot say that his extension-of-time application is spurious or unlikely to succeed: that is a matter for the Federal Circuit Court. The applicant does have, in my opinion, a legitimate interest (in circumstances where I believe he poses a very low risk to the community) in seeking to pursue that application in a normal fashion (that is, with the assistance of expert legal advice). The granting of a bridging visa does not always come with work rights, I acknowledge, but the visa may have work rights attached and I should not prejudge the matter or assume that the applicant would not be granted such rights. He has a good plan in place; namely, to reside in Melbourne where he will have both accommodation and a work opportunity with a friend.
I accept his submission that his behaviour in jail and detention has not apparently given rise to any issues. In any event none were put to me by the respondent. The applicant admitted that he formerly had drug and alcohol problems but that he has not consumed any drugs or alcohol since his arrest. I accept the letter from Narcotics Anonymous that the applicant has made attempts to deal with his dependence issues.[26] There is a reference to a relapse in 2020 in that regard, but it is noted to be a relapse only, and it is recorded that the applicant recommenced his association with the organisation (although progress was interrupted by his incarceration).
[26] Part of Exhibit A1.
I must bear in mind, of course, just how serious the applicant’s offending was, and I do note that although the applicant poses in my estimation a low risk of recidivism, this consideration is required to be considered “cumulatively”, that is, in conjunction with the very serious nature of the crime of which the applicant was found guilty. There is no doubt that the community-expectations consideration counts very substantially against him.
I have found this a very difficult decision, but I return to the limited nature of the visa that I am asked to consider and what I regard as the applicant’s legitimate interest to seek to work in the community and consult with his barrister. He has an appropriate plan to keep away from poor associates in Sydney where the serious offending took place. I do not have an applicant before me with an otherwise significant and persistent criminal record although the kidnapping offence is, of course, a matter of real concern.
All in all, I have found this a difficult matter, and the conclusion I have reached is one very much on balance. In my opinion, on the evidence before me, the correct or preferable exercise of the discretion under s 501(1) of the Act, after I have applied the Direction, does not favour refusal of a bridging visa.
FORMAL DECISION
From this conclusion it follows that I should set aside the decision under review and substitute a decision that the applicant’s application for a bridging visa not be refused under section 501(1) of the Act.
I certify that the preceding sixty (60)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]………………………..
Associate
Dated: 21 December 2023
Date of hearing:  22 & 24 November 2023
Advocate for the Applicant:      Self-represented
Advocate for the Respondent:  Alex Chan,
  Sparke Helmore