RDQK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1152
•14 May 2024
RDQK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1152 (14 May 2024)
Division:GENERAL DIVISION
File Number(s):2024/1091
Re:RDQK
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 14 May 2024
Date of written reasons: 20 May 2024
Place:Canberra
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review dated 19 February 2024 and makes a decision in substitution for the decision so set aside to not refuse to grant the Applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958.
...[SGD].....................................................................
Member W Frost
Catchwords
MIGRATION – decision of the delegate to refuse to grant the applicant a visa pursuant to subsection 501(1) of the Migration Act 1958 – whether the applicant passes the character test – where the applicant has a substantial criminal record pursuant to subsection 501(7) of the Migration Act 1958 – applicant does not pass the character test – whether the discretion to refuse to grant the applicant a visa should be exercised – application of Direction No 99 – best interests of minor children in Australia – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 197C, 189, 198, 499, 500, 501, 501G
Cases
Cameron v The Queen (2002) 209 CLR 339
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WGKS and Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2020] AATA 38YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Bertelsmann Stiftung’s Transformation Index 2024, Sierra Leone Country Report
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
20 May 2024
INTRODUCTION
This proceeding concerns the review of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), to refuse to grant the Applicant, known as RDQK in this proceeding, a Bridging E (Class WE) visa (Visa).
RDQK’s application for the Visa was refused under subsection 501(1) of the Migration Act 1958 (Act), because a delegate of the Minister was not satisfied that he passed the ‘character test’ under the Act due to having a ‘substantial criminal record’, in circumstances where he had been ‘sentenced to a term of imprisonment of 12 months or more’. In this regard, RDQK was convicted in 2020 of ‘Supply prohibited drug > = commercial quantity-Si’ and sentenced to a term of imprisonment of four years, with a non-parole period of two years and six months.
RDQK applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision to refuse to grant him the Visa. The Tribunal has considered all of the documents filed in this proceeding pursuant to section 501G of the Act, together with the parties’ respective submissions and additional documents.[1] For the following reasons, the Tribunal has decided to set aside the decision under review, which exercised the discretion under subsection 501(1) of the Act to refuse to grant RDQK the Visa, and in substitution to make a decision to not exercise that discretion to refuse the grant of the Visa. That is, RDQK’s application to the Tribunal is successful.
[1] Exhibits 1-5.
BACKGROUND
RDQK is a 30 year-old male national of Sierra Leone.[2]
[2] Exhibit 1, pages 5, 70, 72, 133.
In January 2012, at 17 years of age, RDQK arrived in Australia on a Tourist (Subclass 676) visa (Tourist Visa).[3] Aside from two short trips overseas in 2014 and 2015 respectively, RDQK has remained in Australia since 2012.[4]
[3] Ibid., pages 125, 294 and 470.
[4] Ibid.
In March 2012, RDQK applied to the Department of Home Affairs (Department) for a Protection (Class XA) visa (Protection Visa).[5]
[5] Ibid., pages 203, 233 and 247-292.
In May 2012, the Department refused to grant RDQK a Protection Visa, with the delegate stating that:[6]
…I have serious concerns regarding the credibility of the applicant to the extent that they rise to the level of a positive state of disbelief (Guo Wei Rong v MIEA (1996) 64 FCR 151). I find that whilst the account is detailed; on key facts, I conclude that the applicant’s evidence has been fabricated to convince the Department that he should be a recipient of a Protection visa and for no other reason.
[6] Ibid., pages 233-246.
In June 2012, RDQK, aged 18, married 28-year-old Ms T, an Australian citizen born in Sierra Leone.[7]
[7] Exhibit 3., page 98.
On 3 September 2012, the then Refugee Review Tribunal of Australia (RRT) affirmed the decision not to grant RDQK a Protection Visa.[8] The RRT found that:[9]
Having disbelieved all the applicant’s key claims, there is no basis upon which the Tribunal could conclude that the applicant has a well-founded fear of persecution for a Convention reason in Sierra Leone.
Similarly, in the light of the above findings of fact, and in the absence of any claims other than those dealt with above, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sierra Leone, there would be a real risk that he would suffer significant harm.
[8]Exhibit 1, pages 203-232.
[9] Ibid., page 232.
On 24 September 2012, RDQK applied for a Partner (Residence) (Class BS) (Subclass 801) visa (2012 Partner Visa Application).[10] His sponsor was his then wife, Ms T.[11]
[10] Ibid., page 150.
[11] Ibid.
On 26 September 2012, RDQK was granted a Bridging (Subclass 010) visa (2012 Bridging Visa) while his 2012 Partner Visa Application was under consideration.[12]
[12] Ibid., page 142 and 145.
In or around 2013, RDQK met Ms G, an Australian citizen born in Liberia, and they commenced a relationship.[13]
[13] Exhibit 1, pages 353 and 365; Exhibit 4, page 169.
In December 2013, RDQK was granted a Temporary Partner (Class UK) (Subclass 820) visa.[14]
[14] Exhibit 1, pages 147, 150 and 294.
In April 2017, RDQK’s first child with Ms G was born.[15]
[15] Ibid., page 412.
In January 2018, the Department refused RDQK’s 2012 Partner Visa Application.[16] A delegate found, in summary, that:[17]
I am not satisfied that you and your sponsor are in, or have ever been in, a genuine, continuing and mutually exclusive spousal relationship. The fact that you have a child with Ms G…and there is substantial evidence that you are in relationship with her and have been living together, undermines your claims that you claim only had a “one night stand”. Your comments and explanations regarding the plethora of adverse information before the Department are implausible and at times contradictory, which in turn leaves you with no credibility. I am therefore unable to accept your claims at face value unless they are corroborated by substantial evidence. I find that the limited evidence you have provided does not support your claims.
You previously had a protection visa application refused based on false and fraudulent information that you had provided the Department, as well as concerns about your true identity, which have still not been resolved. Due to the vast amount of false or misleading information that you have provided to the Department, it is not clear what information you have supplied is in fact truthful and reliable. I find that you and your sponsor have deliberately provided the Department with false information about your relationship in order to assist you to obtain a visa to remain in Australia. There is little information before me to suggest that you have ever lived together with your sponsor in a mutually exclusive, genuine and continuing spousal relationship. I am not satisfied that you and your sponsor present publicly as a couple and continuing to be accepted by others as such.
Based on the information before me, I am therefore not satisfied that you are the spouse or de facto partner of your sponsor as defined under the Act. Accordingly, I find that you do not meet subclause 801.221(2)(c) of the Regulations, and therefore that you do not meet clause 801.221 of the Regulations.
[16] Ibid., pages 150-154.
[17] Ibid., pages 153-154.
Between January and February 2018, RDQK was observed by NSW Police on four occasions supplying a total of 363 grams of the drug methylamphetamine.[18]
[18] Exhibit 5, pages 19-20. See also Exhibit 1, pages 73-109.
On 13 March 2018, RDQK was arrested, refused bail and admitted into custody for the then alleged offending of supplying a commercial quantity of a prohibited drug.[19]
[19] Exhibit 1, pages 105-106 and 111.
In June 2018, the Department cancelled RDQK’s 2012 Bridging Visa under section 116 of the Act.[20] The decision noted ‘the significant nature of the visa holder’s alleged involvement in drug supply activities relating to indictable and commercial quantities of methylamphetamines’ and considered that ‘this alleged involvement indicates that the visa holder may pose a risk to the health of the Australian community, given the known adverse health consequences the drug has for those who use it’.[21]
[20] Ibid., pages 142-149.
[21] Ibid., page 149.
In April 2019, the Migration & Refugee Division of the Tribunal, differently constituted, affirmed the decision to cancel RDQK’s 2012 Bridging Visa.[22] The Tribunal considered that ‘the applicant has provided false and misleading information to the Department in the past and is not a reliable witness in relation to evidence regarding his background’.[23]
[22] Ibid., pages 293-304.
[23] Ibid., page 303.
In September 2019, RDQK and Ms T divorced.[24]
[24] Exhibit 4, pages 69-70.
On 11 May 2020, RDQK was convicted in the District Court of New South Wales of ‘Supply prohibited drug > = commercial quantity-SI’ and sentenced to a term of imprisonment of four years, with a non-parole period of two years and six months.[25] The four year term of imprisonment commenced from the time RDQK was arrested on 13 March 2018 and expired on 12 March 2022, with the two-year and six month non-parole period ending on 12 September 2020.[26]
[25] Exhibit 1, pages 70-104.
[26] Ibid., pages 110-111. See also Exhibit 1, pages 73-104.
On 9 July 2020, the NSW State Parole Authority directed that RDQK be released on parole into the community on 12 September 2020.[27]
[27] Ibid., pages 113-115.
On 10 September 2020, in anticipation of being released on parole, RDQK applied for a Bridging E (Class WE) visa, being the Visa the subject of this proceeding.[28]
[28] Ibid., pages 457-464.
On 12 September 2020, RDQK was released on parole into the community.[29]
[29] Ibid., pages 110-115.
In April 2021, the Department sent RDQK a ‘Notice of intention to consider refusal of your visa application under section 501(1) of the Migration Act 1958’, because of information indicating that he did not pass the ‘character test’ under the Act, due to having a ‘substantial criminal record’.[30] RDQK was invited to comment on the information and provide reasons why his application for the Visa should not be refused.[31]
[30] Ibid., pages 305-309.
[31] Ibid.
In May 2021, RDQK and Ms G married.[32]
[32] Ibid., page 409.
In September 2021, RDQK’s legal representative provided a written statement and supporting evidence in response to the Department’s notice of April 2021.[33]
[33] Ibid., pages 343-369.
In July 2022, RDQK’s second child with Ms G was born.[34]
[34] Ibid., page 411.
In March 2023, the Department sent RDQK a notice containing further information regarding the possible refusal of the Visa application under subsection 501(1) of the Act, being the recent making of Direction 99 by the Minister.[35] In June 2023, RDQK’s legal representative provided a written statement and supporting evidence in response to the Department’s notice.[36]
[35] Ibid., pages 310-312.
[36] Ibid., page 313-328 (excluding attachments).
On 19 February 2024, a delegate of the Minister refused RDQK’s application for the Visa under subsection 501(1) of the Act.[37] On 20 February 2024, RDQK was notified of the decision via email from the Department to his legal representative under cover of a letter of the same date.[38]
[37] Ibid., pages 45-69.
[38] Ibid., pages 30-44 (excluding attachments).
On 23 February 2024, RDQK applied to the Tribunal for review of the decision to refuse to grant him the Visa.[39]
LEGISLATION & MINISTERIAL DIRECTION
[39] Ibid., pages 4-13.
The Act
Section 501 of the Act relevantly provides that:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;... [emphasis in original]
For completeness, the Tribunal notes that subsection 500(1)(b) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act. Accordingly, the delegate’s decision to refuse to grant RDQK the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 23 January 2023, the Minister made a direction under section 499 of the Act, being Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which commenced on 3 March 2023 and applies to a decision made in relation to the application for the Visa made by RDQK.
The Preamble to Direction 99 sets out objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa (paragraph 5.1(1));
(b)under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test (paragraph 5.1(2));
(c)where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion (paragraph 5.1(2));
(d)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 (paragraph 5.2(1));
(e)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(g)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4));
(h)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5); and
(i)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation (paragraph 5.2(6)).
Paragraph 6 of Direction 99 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 99 relevantly states that, in making a decision under subsection 501(1) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 99 relevantly provides that, in making a decision under subsection 501(1) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Finally, paragraph 7 of Direction 99 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal in this proceeding were:
(a)whether RDQK passes the ‘character test’ as defined in subsection 501(6) of the Act; and
(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant the Visa to RDQK.
EVIDENCE
RDQK
RDQK filed a Statutory Declaration in this proceeding, which has been considered by the Tribunal in making its decision.[40]
[40] Exhibit 4, pages 16-167.
RDQK gave evidence by video at the Tribunal hearing and confirmed his present residential address and occupation as a truck driver. He also confirmed adherence to his Statutory Declaration.
Under cross-examination, RDQK told the Tribunal that he came to Australia because his uncle had obtained a visa for both himself and RDQK to have a two-week holiday in this country before returning to school in Iran (where his uncle was working and caring for RDQK). However, instead of travelling with his uncle, RDQK came to Australia by himself and a few months later he contacted a person in Australia purporting to be a migration agent who was recommended to him by ‘community members’. RDQK told the Tribunal he was young and did not know the migration process. The person took his passport and ‘wrote for me all this story’ in relation to the application for a Protection Visa. He acknowledged to the Tribunal knowing that the claims made at that time were false. RDQK also admitted to relying on those claims and accompanying documents at interviews with the Department regarding a Protection Visa and said that the person had told him to not change his fabricated story during this process. RDQK told the Tribunal that he ‘took responsibility’ for his false claim in the application process. RDQK confirmed that he wanted to tell the truth at that time, but was told to maintain the ‘story’; he ‘didn’t want to go back’ to Iran and be forced by his uncle to pursue religious studies. RDQK again said he was relying on the purported agent’s advice.
RDQK recalled making an oath or affirmation at the RRT hearing and that he accepted giving false evidence or information to that tribunal.
The Minister’s representative referred RDQK to the 2012 Partner Visa Application and the false information regarding his meeting of Ms G after a car accident and Ms T ‘kicking me out of the house’.[41] He recalled receiving a call for an interview with the Department regarding his 2012 Partner Visa Application. RDQK told the Tribunal that he was not prepared for questions at the interview about his relationship status and acknowledged providing untrue statements to the Department, but said he was not in ‘a proper state of mind’, unprepared and ‘shocked’.
[41] Exhibit 1, page 152.
RDQK was asked whether he was willing to not tell the truth in order to advantage himself, such as being granted a visa. RDQK told the Tribunal that he was attending the Tribunal to ‘tell the truth’, he did not want to continue ‘telling lies’ and making ‘errors’ that he did when he was young. RDQK agreed with the proposition that he had previously told lies to the Department and the Tribunal (in separate, earlier proceedings), but had not in this application currently before the Tribunal.
RDQK told the Tribunal his former relationship with Ms T was legitimate, although he had at that time provided false information regarding this relationship to the Department and the RRT.
RDQK was referred to a differently constituted Tribunal decision of 2019 affirming the cancellation of his then bridging visa, a Subclass 010 (Bridging A) visa.[42] RDQK recalled making an oath or affirmation regarding the truthfulness of his evidence to that Tribunal. The Tribunal recorded that RDQK had, at that hearing, claimed not to have been involved in the supply or distribution of drugs, he was intending to plead not guilty at his upcoming trial and evidence of his involvement in the alleged offence had been fabricated.[43] He told this Tribunal that, at the time, his criminal matter was still pending and he was maintaining his innocence before having all the facts and determining how to proceed at trial, but confirmed that he ultimately pleaded guilty. RDQK agreed to concocting a story regarding what had led to him being criminally charged, and told this Tribunal that he was ‘wrong’ and had taken ‘full responsibility’ for that offending by admitting guilt. He also agreed that his statement at the earlier Tribunal hearing in relation to why he was not bailed was incorrect, but maintained that one of the reasons for not being granted bail was because he did not then have a visa.[44]
[42] Exhibit 1, pages 293-304.
[43] Ibid., page 296.
[44] Ibid.
The Minister’s representative put to RDQK that he lied to the Tribunal in 2019 so as to advantage his chances of securing the visa. He said at that time he was trying to get bail and, based on his then legal advice, this would not occur without a visa. RDQK acknowledged making errors in the past, and that he had said things that were ‘contradictory’, he was not making excuses and took full responsibility for those matters and was before this Tribunal to tell the truth in this proceeding.
RDQK told the Tribunal that he currently held no bridging visa with attached work rights in Australia. He was referred to his written submissions to the Minister in around September 2021 and RDQK’s accompanying undated written statement that ‘I cannot begin working until the bridging visa E is granted and the work rights are removed. I do have a job offer available to me’.[45] He told the Tribunal that he was working in September 2021 because he had ‘bills to pay’, a wife and son, and the Department’s visa processing took too long for him to wait while not working. RDQK said he was not working from the time of his release from gaol in September 2020 to December 2020 and was ‘doing it tough’, given there were three people in the household, living costs were high and his wedding to Ms G was in 2021. While waiting for the Visa, he called the Australian Taxation Office (ATO) to confirm his tax file number was still valid, and said he did not want to do anything ‘dodgy’. RDQK told the Tribunal he was informed he could work as his tax file number was still valid and therefore did so for almost four years, as well as paying income tax. He acknowledged it was ‘wrong’ to work, but said that he paid tax and had to work to ‘survive’. RDQK also said he started working in December 2020 or January 2021. RDQK told the Tribunal he refused ‘cash in hand’ jobs and took jobs where he paid tax so he did not ‘avoid the system’. RDQK could not recall when his undated statement was written, but said he believed it was made after being released from gaol and when he was not working in 2020, and not 2021 when it was received by the Department.
[45] Exhibit 1, pages 343-349.
RDQK agreed that he commenced working shortly after writing in that statement that he did not have work rights. He said he was waiting for the visa, was under financial constraints and was dependent upon his partner’s income so he therefore decided to start working. RDQK again said he called the ATO to confirm his tax file number and gave this to his employer because he did not ‘want to do anything dodgy’. He was desperate to ‘survive’ and provide for his family. RDQK considered that if he had no work rights, his tax file number would ‘cease’. He acknowledged not contacting the Department to confirm his work rights and said he relied upon his solicitor. RDQK subsequently told the Tribunal he knew he did not have the right to work but needed to do so to ‘survive’ and provide for his family.
RDQK was asked whether he was currently working as both a personal trainer and a truck driver. RDQK said he completed a personal training certificate in gaol and following his release into the community was taking training in the park and gym, but this ceased due to the COVID-19 pandemic. He no longer has time for this work, and was ‘doing it for free’ to ‘give back to the community’. RDQK continues to provide training videos and train people, but does not run a business or charge for this activity, although he acknowledged receiving monetary tips from some people.
The Minister’s representative asked RDQK about the nature of his ‘financial hardship’ at the time he began offending.[46] He told the Tribunal that he was looking after ‘two households’, being those of Ms T and Ms G, and took out a personal loan for Ms T’s new car, together with paying school fees, all of the rent for Ms T and helping Ms G with her rental costs, in the amount of $200 per week, and paying for medicines for their son. RDQK said he was ‘always’ behind on payments for school fees, electricity bills, Ms G’s rent and the car loan. After paying for these things, sometimes he would have ‘nothing’ left and occasionally miss a payment.
[46] Exhibit 1, page 330.
RDQK was referred to the purchase of Ms T’s vehicle in August 2017, before his offending in early 2018. He took out a loan and said he was ‘getting financial pressure’ from Ms T; she wanted a new car, rather than a used car, and as his wife he ‘was trying to please her’. The car loan was $20,000, but he also required further cash from another person to cover the purchase price. He said the loan repayments and running two households were ‘all on my head’. RDQK did not want to go into detail regarding from whom he borrowed the balance of the money to purchase the car due to fears for his and his family’s safety. Before borrowing this money in 2017, he was not involved in criminal conduct. He said that the loan from ‘these people’ ‘led me to where I am today’. He told the Tribunal that one of the people involved was a ‘friend’ in the community. An older man rang him about a car RDQK was selling in order to purchase Ms T’s new car and this person gave him some money for the car he was selling, but told him to contact him later for the balance of the funds. RDQK told the Tribunal that this person ‘ended up being my co-accused’ in the criminal proceeding and that, prior to his offending in January and February 2018, RDQK was ‘nobody’.
In 2014 and 2015, RDQK travelled from Australia to China to purchase apparel and footwear that he then sold in Australia ‘on the side’ of other work. However, this business became uncompetitive due to other people in the community running similar businesses. He did not consider this to be ‘employment’ such that it should have been included in his recent Statutory Declaration; this business was ‘on the side’. RDQK did not initially declare earnings from this business, but subsequently obtained an Australian Business Number and paid taxes before it ‘collapsed’ in 2016. RDQK confirmed that the business commenced in 2013 and that his notices of assessment lodged with the ATO did not contain earnings from the apparel and footwear business, but said he could not ‘pay tax on a business that did not succeed’. RDQK was referred to his highest taxable income since residing in Australia, being the amount of $65,083 in the 2017 financial year, and it was put to him that this did not indicate a level of financial stress at that time. He told the Tribunal that this was not an ‘after tax’ amount and did not account for the rental costs for two households and other expenses. RDQK agreed that this level of financial pressure was common to many people and said that this was ‘not an excuse’. He further stated that there was no justification for the commission of a crime and even if he was ‘starving’ it did not warrant selling drugs; it was ‘a bad decision’, ‘a wrong choice’, ‘a mistake’, an ‘error’ and ‘will not happen again’. RDQK said the level of financial distress did not justify his actions in selling drugs or for any crime; it was ‘selfish’ and ‘greedy’; he ‘took full responsibility’ for the offending.
RDQK was asked about receiving any psychological or rehabilitative treatment. He told the Tribunal that he saw a psychologist twice before being released from gaol and also for this proceeding, but was ‘mentally stable’, ‘focused’, had a wife and children and was engaged in learning trades and skills in gaol. In this regard, RDQK noted that he did not finish the welding or the electrical courses that he started in gaol and would have to pay privately to complete these courses.
It was put to RDQK that, based on the Statutory Declaration provided in this proceeding and the statement submitted to the Department during the Visa application process, he was not wholly forthcoming with the full history of his employment, and that therefore the Tribunal may infer that it cannot rely on the truthfulness of his evidence. RDQK said that he had not hidden the fact of his employment while not holding a visa with work rights in Australia. He said he had made mistakes and errors in the past, possibly based on immaturity and naïveté, but was now telling the truth, he did not want to do ‘anything dodgy’, was in an ‘exclusive relationship’ and was not seeking to ‘deceive anybody’.
In re-examination, RDQK was referred to questions from the Minister’s representative regarding his business in around 2013 to 2016 selling clothes and shoes sourced from China. He told the Tribunal that the business did not make a profit at its commencement in 2013 and some customers did not pay him cash after he gave the items to them on credit. RDQK said that in 2014 the business also made a loss, including because of the travel costs associated with his trip to China to secure the goods for resale in Australia. He also said that he ‘lost’ a $10,000 bank loan received in 2013, was therefore in debt and ‘a lot of people’ in his community did not repay him for items provided to them on credit.
Ms G
Ms G, RDQK’s wife, made a Statutory Declaration in this proceeding, which has been considered by the Tribunal.[47] She gave evidence by video at the Tribunal hearing and confirmed her residential address, occupation as a disability support worker and adherence to her written statement.
[47] Exhibit 4, pages 168-235.
By way of cross-examination, Ms G told the Tribunal that she met RDQK in mid-2013. He was selling clothes and shoes imported from China. She did not know him very well, but recalled he was working at the time they first met.
Ms G told the Tribunal that, while they were in a causal relationship, RDQK ‘sometimes’ supported her financially when she would ask. The maximum amount of support during this period at any one time from RDQK was $150, and more regular payments commenced in advance of the birth of their first child. He paid ‘half’ of Ms G’s rent from around October 2016. Ms G worked up until the seventh or eighth month of her pregnancy and was off work for approximately six months after the birth of their first child in April 2017. Ms G returned to work on a casual basis for six hours each day for three days per week. Ms G told the Tribunal the financial arrangements with RDQK did not change after she returned to work. At that time, she was aware of RDQK’s financial difficulties because he was managing two households and had ‘tried’ to continue making payments to Ms G. She confirmed that RDQK continued to pay half of her rent at that time and continued his financial support.
When RDQK committed his criminal offending in early 2018, Ms G told the Tribunal they were both ‘parents’ to their child and not then in a romantic relationship, although they regularly saw each other, including when RDQK looked after their son when she worked.
Ms G was referred to a psychological report dated 8 October 2020, following assessments of her in August 2020.[48] Ms G told the Tribunal she had not had any treatment following diagnoses at that time of post-traumatic stress disorder (PTSD) ‘comorbid’ with ‘Major Depressive Disorder, with anxious distress, severe’.[49]
[48] Exhibit 1, pages 362-369.
[49] Exhibit 1, page 368.
Ms G was referred to the statement in the psychological report of Ms Anne Marie De Santa Brigida dated 30 April 2024, that Ms G ‘will have no choice but to go with’ RDQK if he had to return to Sierra Leone.[50] She recalled making this statement. Ms G was then referred to her recent Statutory Declaration made in this proceeding that she ‘would not migrate to Sierra Leone’.[51] Ms G told the Tribunal that she had determined that Sierra Leone was unsuitable for children, including because of the security situation, the employment rate and the available employment assistance. She said that it would be ‘so difficult’ and did not consider she would be able to leave Australia for Sierra Leone because of her children.
[50] Exhibit 2.
[51] Exhibit 4, pages 175-176.
In this regard, Ms G also told the Tribunal that her current working hours are from mid-afternoon to 10pm; the hours are set and the two other shift work options would not be suitable alongside child care and school hours in the absence of RDQK. Ms G was unsure whether she would be able to cope with continued caring obligations and work without her husband.
Ms T
RDQK’s former wife, Ms T, made a Statutory Declaration for this proceeding which has been considered by the Tribunal.[52] She gave evidence at the Tribunal hearing and confirmed adherence to her written statement.
[52] Exhibit 4, pages 236-248.
By way of cross-examination, Ms T told the Tribunal that RDQK was not working at the time they met in January 2012, but he did start working once their relationship commenced. They shared costs and bills after their marriage and once they lived together; RDQK paid all of the rent and her son’s school fees. However, Ms T confirmed that, in 2015, the payment of rent was shared because of their relationship issues. From sometime in or around 2016 or 2017 up until his arrest in March 2018, RDQK was paying all of Ms T’s rent and her child’s school fees.
Ms T recalled RDQK making his application for a Protection Visa in 2012. When this was denied, Ms T decided to marry RDQK because he was helping care for her son, she ‘needed him at that time’ and loved him very much. Ms T also recalled the couple receiving advice from a migration agent and said she would have married RDQK ‘without the visa’ because he had proposed and she loved him.
Ms T was asked about the period before RDQK’s criminal offending in January and February 2018. She told the Tribunal she was unaware of RDQK’s financial difficulty at this time because he was still making payments for rent and school fees. She was unaware of the non-payment of any bills.
Ms T was referred to RDQK’s statement in his Statutory Declaration in this proceeding that she was demanding a new car and he therefore made an incorrect decision to deal drugs. She was asked whether she was demanding a lot from RDQK. Ms T agreed and said RDQK ‘promised me’ a new car and she therefore demanded one.
Ms T was referred to a psychological report on RDQK from February 2020, which stated that he reported Ms T had ‘increasing financial demands’, he was paying for private school fees, he was responsible for ‘all their bills’, Ms T was ‘spending money in excess’, she got everything she wanted, she controlled him and he had difficulty saying no to her as she threatened to deport him.[53] The Minister’s representative asked Ms T whether she agreed with this statement. Ms T said, ‘Yes’; she spent money in excess, she got everything she wanted and once threatened to deport him or upset his visa status because he ‘made a promise to me’ so she ‘threatened him’. Ms T used this money from RDQK to look after herself and her son, on things such as clothing and the new car in addition to the rent and school fees he was already paying.
[53] Exhibit 1, page 351.
Ms T was asked whether she was aware how RDQK got the cash component for the new car. She told the Tribunal she was not aware and RDQK had only told her that they could go and purchase the car. Ms T never asked him where he obtained the money, including because she was ‘so excited’ and he was ‘very hard working’. She confirmed that RDQK made all payments for the car, including insurance. Once RDQK was arrested in March 2018, Ms T provided fortnightly financial support to him up until August 2019 when they filed for divorce.
Ms Anne Marie De Santa Brigida – Psychologist
Following three separate assessments of RDQK and one of Ms G, Ms De Santa Brigida prepared a report for this proceeding dated 30 April 2024, which relevantly stated as follows:[54]
[54] Exhibit 2.
It is the assertion of this author that [Ms G] meets the following diagnosis –
309.81 Post-traumatic Stress Disorder against a background of complex trauma.
The etiology [sic] of the PTSD and complex trauma was [Ms G]’s exposure to developmental trauma in Liberia.
It is noted that [Ms G] reports that she still experiences the classic symptoms of PTSD, with intrusive thoughts, dreams and nightmares, avoidance of stimuli associated with the trauma and problems relating to others, and these symptoms pertain to things that occurred in Liberia.
This author has deferred the diagnosis of Major Depressive Disorder as it appears that this may have occurred as a comorbidity of PTSD.
…
The risk of recidivism in relation to [RDQK] is considered to lie between the low to moderate range, in an overall view of the results of all three risk assessments. However, he is towards the low end of the spectrum. There are several reasons why he scores in this range. Firstly, he does not evidence many of the factors typically associated with recidivism. For example, there is no indication of oppositionality or conduct problems and there is no indication of multiple repeat offences. Therefore, he does not meet the criteria for Anti-social Personality Disorder.
Secondly, there is no apparent evidence in his history of neurodevelopmental problems such as Attention-Deficit/Hyperactivity Disorder (ADHD) or other neuro-developmental problems. This is particularly important because disorders such as ADHD are strongly implicated in other disorders such as oppositionality and anger problems. These factors in turn are then strongly implicated in recidivism.
Thirdly, whilst there is no question that [RDQK] has experienced traumatic events in his early years, particularly the early loss of his father, he does not appear to have developed PTSD in response to these experiences. This is important because trauma is so closely correlated with substance abuse and emotional dysregulation, which is a specific risk factor for recidivism.
Furthermore, although [RDQK] has an early history of alcohol and cannabis use, he has ceased using at an early age, and this has not become an entrenched problem.
Taking all of these factors into account, including the results of three recidivism assessments, psychological assessment indicates the absence of typical distinctive factors of criminal involvement such as evidence of anti-social attitudes, poor behavioural controls, substance abuse, inadequate social network and impaired chaotic lifestyle functioning, therefore indicating low risk of future criminal behavior [sic].
It has been noted that [RDQK] has protective factors against further offending. Most notably, these include his relationship with his wife and children, and his history of regular employment. [emphasis in original]
Ms De Santa Brigida gave evidence by video to the Tribunal and confirmed adherence to her written report.
By way of cross-examination, Ms De Santa Brigida confirmed that she does not presently have clinical or forensic psychological endorsements and that none of the assessment tools administered on RDQK require such qualifications. The results must be interpreted by a registered psychologist.
Ms De Santa Brigida said that RDQK did not have ‘a lot’ of the risk factors that are normally present in these assessments, such as drug and alcohol issues. She told the Tribunal the ‘Personality Assessment Inventory – Correctional Settings’ screening was not administered because RDQK is currently in the community. Ms De Santa Brigida undertook three separate assessments, including the Personality Assessment Screener (PAS). The PAS is a subset of the Personality Assessment Inventory with a number of questions, each weighted differently to the overall reading. Ms De Santa Brigida said she was ‘not terribly worried’ about RDQK’s ‘Moderate’ ‘Negative Affect’ reading because of his current immigration process, but was focused on the ‘Marked’ ‘Acting out’ indices, because if it is high the reading indicates earlier conduct issues. The ‘Acting out’ indices measure the propensity for the individual to ‘act out’ generally, not in specific situations. Ms De Santa Brigida agreed that this reading was ‘definitely’ relevant to the risk of recidivism. She recommended follow up evaluation, which is usually done through Community Corrections, to determine any increased risk of re-offending.
Ms De Santa Brigida agreed that there was developmental trauma in RDQK’s history and that this was a factor indicating a risk of recidivism. The Minister’s representative referred Ms De Santa Brigida to the discussion in her report regarding RDQK’s dishonesty in immigration processes.[55] She told the Tribunal that ‘any degree of dishonesty is a factor for recidivism’, including repeated dishonesty and providing false evidence under oath.
[55] Exhibit 2, page 9.
The Tribunal asked Ms De Santa Brigida to confirm that she did not diagnose RDQK with any psychological disorder or condition. She confirmed this was correct. Ms De Santa Brigida also confirmed her opinion that, based on ‘averaging out the three tests’ she administered, RDQK’s risk of recidivism is low and at the ‘lower end’ of the ‘severity spectrum’.[56] She told the Tribunal that RDQK ‘doesn’t have many of the risk factors that you notice in individuals with heightened recidivism’. She agreed that a protective factor was RDQK’s time spent in the Australian community since his release on parole in September 2020 without reoffending. Finally, the Tribunal referred Ms De Santa Brigida to her report setting out RDQK’s total PAS scores of 20 (‘Raw Score’) and 55.10 (‘P score’), equating to a ‘Moderate’ risk for clinical problems and her written statement that ‘[r]oughly 51% of persons obtaining this score will report some type of difficulty in a comprehensive self-report evaluation’.[57] Ms De Santa Brigida confirmed that these results meant that RDQK sat within the average range or middle of the general population in the community, not only those with a criminal history.
CONTENTIONS
[56] Ibid., page 21.
[57] Exhibit 2, pages 15-16.
RDQK
RDQK accepted that, as a result of his sentence of imprisonment, he had a substantial criminal record under the Act and therefore did not pass the character test. However, RDQK contended that the Tribunal should set aside the decision under review and not exercise the discretion in subsection 501(1) of the Act to refuse to grant him the Visa. He submitted that Primary Consideration 3, the strength, nature and duration of ties to Australia, weighed heavily in favour of not exercising the discretion to refuse the Visa and Primary Consideration 4, the best interests of minor children in Australia, weighed very heavily in favour of not exercising that discretion under the Act. Additionally, it was contended that the two relevant ‘other’ considerations, being the extent of impediments if removed and an additional other consideration regarding the consequences of an adverse Tribunal decision on RDQK’s future visa applications, also weighed in favour of not exercising the discretion to refuse to grant the Visa.
Conversely, RDQK submitted that Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, weighed against him, and in favour of exercising the discretion to refuse to grant the Visa, but not heavily. As a result, RDQK contended that, upon weighing the competing considerations, the preferable decision was to set aside the decision under review and therefore not exercise the discretion to refuse to grant him the Visa.
Minister
As a result of RDQK accepting that he did not pass the character test in section 501 of the Act, the Minister contended that Primary Consideration 1 and Primary Consideration 5 weighed in favour of refusing to grant the Visa to RDQK and outweighed Primary Consideration 3, Primary Consideration 4, and the relevant ‘other’ considerations weighing in RDQK’s favour. Accordingly, the Minister contended that the Tribunal should affirm the decision to exercise the discretion in subsection 501(1) of the Act to refuse to grant RDQK the Visa.
CONSIDERATION
Does RDQK pass the character test under the Act?
On 11 May 2020, the District Court of New South Wales sentenced RDQK to four years’ imprisonment for the offence of ‘Supply prohibited drug > = commercial quantity-Si’.[58] As a result, in circumstances where RDQK was sentenced to ‘a term of imprisonment of 12 months or more’, the Tribunal is satisfied that he has a ‘substantial criminal record’ pursuant to subsection 501(7)(c) of the Act. Accordingly, the Tribunal finds that RDQK does not pass the ‘character test’ as defined in subsection 501(6)(a) of the Act. As set out above in these reasons, RDQK accepted that he does not pass the character test under the Act.[59]
Should the Tribunal exercise the discretion in subsection 501(1) of the Act to refuse to grant RDQK the Visa?
[58] Exhibit 1, pages 70-71.
[59] Applicant’s Statement of Facts, Issues and Contentions dated 29 April 2024, paragraph 18.
As a result of the Tribunal’s finding that RDQK does not pass the ‘character test’ under subsection 501(6) of the Act, it turns to consider whether the discretion in subsection 501(1) should be exercised to refuse to grant him the Visa.
Pursuant to subsection 499(2A) of the Act, in exercising the discretion in section 501 of the Act, the Tribunal must comply with Direction 99. Paragraph 6 of Direction 99 provides that a decision-maker must take into account the primary and other considerations identified in Direction 99, where relevant to the decision. Accordingly, set out below is the Tribunal’s evaluation of RDQK’s circumstances against the relevant considerations in Direction 99.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 99, regarding Primary Consideration 1, states that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of RDQK’s conduct
Paragraph 8.1.1 of Direction 99 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, which includes:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.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;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending, in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As set out above in these reasons, RDQK was convicted of the criminal offence of ‘Supply prohibited drug > = commercial quantity-Si’ committed in 2018.[60] In 2020, RDQK was sentenced for this offence of supplying a commercial quantity of methylamphetamine and received a term of imprisonment of four years, with a non-parole period of two years and six months.[61]
[60] Exhibit 1, pages 70-71.
[61] Ibid.
The Court’s remarks when sentencing RDQK and his co-offender were relevantly as follows:[62]
[62] Exhibit 1, pages 73-104.
As to [RDQK], he is a much younger man now aged 26. His plea of guilty arose in this court only when he was arraigned on 3 February 2020. That plea, as a consequence, was relatively late, although the scheduled trial date was not to be until 20 April 2020. [RDQK]'s offending arises from his role, described in the Crown statement of facts as a so-called up-line supplier in [S]'s offending. [S]'s offending was constituted by supplying drugs to the undercover operative known as Natasha, those drugs being supplied to [S] by [RDQK].
Otherwise, the resulting charge as resolved in [RDQK]'s case relates to a somewhat lesser total in the quantity of drugs, reduced by a factor reflecting subsequent offending that involved [S] alone, specifically in his supply to Natasha on 30 January 2018. The single count against [RDQK], however, is that between 15 January and 8 February 2018, he supplied 336 grams of methylamphetamine. That offence also attracts consideration of the provided maximum penalties as reflecting the inherent seriousness of any offending within the purview of the offence provisions.
…
[S] and [RDQK] were both identified as persons supplying methylamphetamine in the area. They were, as a result, subject to a controlled operation that involved the use of an undercover operative, in this instance named Natasha, to target them. On four occasions, the operative engaged in lawfully sanctioned transactions, whereby she obtained drugs purchased directly from the offender [S]. The transactions also involved [RDQK] as a person identified as the so-called up-line supplier to [S].
In each of the subject transactions, Natasha purchased drugs ordered by [S] and then obtained by him from [RDQK].
…
[S] was also identified as attempting to purchase larger quantities to supply his customers, that being a separate consideration. Again, it is important to record that the agreed facts related to [RDQK] do not implicate him in that further activity or in [S]'s attempts to make further, larger purchases of illicit drugs.
…
I now turn to those matters personal to the offender [RDQK]: He is a much younger man than [S], on my calculation by an order of approximately 36 years. He has no prior criminal record and he is consequently to be regarded as a person of prior good character. However, by his engagement with [S] in inherently serious offending, he now exposes himself to consideration of the inherent seriousness in his conduct and the specific details of that conduct as he persisted upon it.
…
The personal history of the offender is a somewhat extraordinary one. It has been adopted in oath by him; it is unchallenged. I see no reason why I should not accept it. Apart from anything else, the offender does not make any strong assertions of a disadvantaged background, and he does not press that as an aspect that should give him any leniency. However, my assessment is, by any objective standard, his life has had about it marked instances of disadvantage, and they should be taken into account.
…
The outcome of the psychological assessment in the report is that it presents [RDQK] as a young man with a relatively low level of risk in reoffending.
…
I find that the offender was driven in the offending primarily by a motive for financial gain when he engaged in the supply to [S] of significant quantities of methylamphetamine. This was an appalling misjudgment on his part, and it does bespeak a not inconsiderable criminality. That said, [RDQK] has apparent and significant strengths in the motivation to be with and support his partner and child, and he has a positive history of gainful and stable employment prior to involvement in the present offending. He has also behaved himself in a way that brings credit to him whilst in custody, and has spent his time usefully.
In relation to where [RDQK] should stand in any comparable terms, I do conclude that the Court is left with no clearer picture of the real relationship between [RDQK] and [S], apart from the bare facts of his functioning in repeated transactions, whereby he willingly and intimately involved himself as the person from whom [S] obtained drugs. The agreed statement of facts upon which I am to sentence [RDQK] does not permit of a more nuanced conclusion, and certainly not one that is able or asserted by the Crown to identify him as a person higher up in any notional hierarchy, as distinct from, as described, an up-line supplier, in terms of being the person from whom [S] obtained drugs.
I have, in addition to considering [RDQK]'s evidence, considered the letter that he wrote to the Court and adopted in evidence. Neither it nor any other aspect of his evidence was subject to cross-examination. He asserts in the letter that he was in association with, "individuals of bad character". Further, he states, "I let my desire to provide for my family and their offer of quick money influence my decisions". He concedes that this is no excuse.
…
I have indicated previously that I find [RDQK]'s evidence on oath sustains a conclusion of significant disadvantage, which I take into account in accord with principles enunciated by the High Court in Bugmy v The Queen [2013] 249 CLR 571. I find that [RDQK] is contrite and reasonably insightful. His prospects of rehabilitation as a first offender and a young man with both a strong incentive and capacity for living a law-abiding life are good.
…
In the case of [RDQK], he did perform an essential role in the transactions negotiated by [S] where he provided the drugs. As I have concluded, the evidence does not disclose the precise nature otherwise of the arrangements between [RDQK] and [S], nor the background of contacts between them. I otherwise have his unchallenged evidence of being involved by others to make easy money, and his role being strongly suggestive of that more akin to a courier or a facilitator for the needs of others, including [S].
…
I assess [RDQK]'s offending as being about the midlevel of any notional range. I have also indicated that I find his levels of contrition and insight as being, more probably than not, genuine, and in his case, there are favourable prospects for rehabilitation, in a young man with no prior convictions and whose background of some disadvantage is to be given appropriate weight. [emphasis in original]
RDQK’s criminal offending did not include violent and/or sexual crimes, crimes of a violent nature against women or acts of family violence, all of which are viewed ‘very seriously’ by the Australian Government and the Australian community, pursuant to paragraph 8.1.1(1)(a) of Direction 99. While the range of conduct that may be considered ‘very serious’ is not limited by Direction 99, and without minimising the gravity of RDQK’s criminal offending, the Tribunal finds for the following reasons that this conduct was not ‘very serious’. As set out above, RDQK was convicted of the single offence of supplying a commercial quantity of a prohibited drug, which comprised four separate transactions in early 2018. The Court was satisfied that RDQK was an ‘upline supplier’ of the drugs to his co-offender and held that this was ‘inherently serious offending’ attracting consideration of the associated maximum penalties.[63]
[63] Exhibit 1, page 93.
However, the Court also noted that the agreed facts for the criminal proceeding were that RDQK was not implicated in his co-offender’s attempt to ‘purchase larger quantities to supply his customers’ and to make ‘further, larger purchases of illicit drugs’.[64] Again, without downplaying the seriousness of RDQK’s criminal offending, on the available evidence, it was contained to four occasions in January and February 2018, resulting in one conviction for supplying a commercial quantity of the prohibited drug methylamphetamine. The Court found that RDQK was ‘driven in the offending primarily by a motive for financial gain’, which was ‘an appalling misjudgment’ and ‘does bespeak a not inconsiderable criminality’, although the agreed facts did not allow a conclusion that he was ‘a person higher up in any notional hierarchy’ of a criminal enterprise, but rather he was an ‘upline supplier, in terms of being the person from whom [his co-offender] obtained drugs’.[65] To this end, the Tribunal notes that it was RDQK’s co-offender, not RDQK, who was identified by NSW Police as ‘controlling a drug distribution network, which included several customers and “upline” suppliers’ and that the co-offender ‘supplied drugs from his residence’ or ‘on a delivery basis’.[66] In line with the Court’s finding in 2020, RDQK told the Tribunal that, due to ‘a significant amount of financial distress’, he ‘decided to commit the drug offences’.[67] He confirmed in testimony at the Tribunal hearing that financial issues at the time led to his offending in an attempt to alleviate those pressures.
[64] Ibid., page 83.
[65] Ibid., page 99.
[66] Ibid., page 107.
[67] Exhibit 4, page 27.
Having regard to all of these matters, the Tribunal is satisfied that RDQK’s criminal offending was ‘serious’, pursuant to paragraph 8.1.1(1)(b) of Direction 99. As with conduct that may be considered ‘very serious’, the range of conduct that may be considered ‘serious’ is not limited by the terms of Direction 99. While, on the available evidence, RDQK did not commit his crimes against vulnerable members of the community, such as the elderly or disabled, or government representatives in the performance of their duties, the supply of a commercial quantity of a prohibited drug, here methylamphetamine, was a crime that had the very real potential of leading to great harm to many members of the Australian community, although as the Court noted, ‘in this instance the subject drugs were obtained by an undercover operative primarily, and not by way of distribution into the community’.[68] For the avoidance of doubt, the Tribunal is satisfied that, although the drugs were not disseminated into the community, this does not diminish the seriousness of RDQK’s offending.[69] For these reasons, the Tribunal finds that the seriousness of the offending weighs in favour of exercising the discretion to refuse to grant RDQK the Visa.
[68] Exhibit 1, page 103.
[69] Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468 at [64]-[67].
Turning to consider the sentence imposed by the Court for the aforementioned crime pursuant to paragraph 8.1.1(c) of Direction 99, plainly a sentence of imprisonment is the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[70] The overall seriousness of RDQK’s criminal offending is demonstrated by the sentence of imprisonment imposed upon him by the Court.[71] RDQK was sentenced to four years’ imprisonment with a non-parole period of two and a half years. The Court held that ‘there must be a sentence that meets the purpose of deterrence for persons minded to fill the insidious and very harmful drug trade’.[72] The Tribunal finds that the sentence imposed by the Court reflects the objective seriousness of RDQK’s criminal offending and weighs in favour of exercising the discretion to refuse him the Visa.
[70] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]. See also Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
[71] Exhibit 1, pages 70-71.
[72] Ibid., page 103.
With respect to paragraphs 8.1.1(d) and (e) of Direction 99, RDQK’s offending history comprises one conviction in 2020 for offending in 2018; on the available evidence, he has no other criminal history in Australia or elsewhere. Therefore, the Tribunal is satisfied that RDQK has not engaged in frequent offending. That is, there are not multiple convictions over a period of time. Accordingly, there has been no trend of increasing seriousness or what could be described as any cumulative effect of any repeat offending. The offending was contained to a discrete period between January and February 2018, over six years ago, and involved four occasions where RDQK supplied the prohibited drug methylamphetamine. Apart from this serious offending in early 2018, RDQK has not committed any further offending in Australia or elsewhere.
For these reasons, if the Tribunal’s interpretation of ‘the frequency of the non-citizen’s offending’ in Direction 99 is wrong and it does encompass frequent acts related to a single conviction, the Tribunal is satisfied that there was some frequency to RDQK’s offending, but it was limited to four occasions in early 2018, there was no trend of increasing seriousness and, in this regard, the cumulative effect of this offending was the one conviction in 2020. Additionally, for the avoidance of doubt, the Tribunal does not consider that paragraph 8.1.1(1)(d) and (e), regarding frequency, trend and cumulative effect, are directed to a non-citizen’s ‘conduct’, but rather, on a plain reading of the text of all of paragraph 8.1.1 of Direction 99, they refer to a person’s criminal offending. Those paragraphs, unlike others under paragraph 8.1.1 of Direction 99, do not refer to ‘conduct’. They refer to ‘offending’ which, in the Tribunal’s view, reflects a requirement under those paragraphs to consider the frequency, trend and cumulative effect of a non-citizen’s criminal offending, not their adverse ‘conduct’. As a result of the above analysis, the Tribunal finds that these matters in paragraphs 8.1.1(1)(d) and (e) of Direction 99 are neutral in its consideration.
Pursuant to paragraph 8.1.1(f) of Direction 99, the Tribunal must have regard to whether RDQK ‘has provided false or misleading information to the Department’. In his testimony to the Tribunal, RDQK admitted to repeatedly providing false or misleading information to the Department in association with his multiple visa applications over many years in Australia. In written submissions, RDQK accepted that:[73]
The knowingly false information provided by the applicant to the Department and AAT on multiple occasions over a number of years is at least “serious”. In light of the “frequency” (paragraph 8.1.1(1)(d)) and “cumulative effect” (paragraph 8.1.1(1)(e)) of the provision of knowingly false information, the applicant’s lawyers would not cavil with a conclusion that the conduct is “very serious”.
[73] Applicant’s Statement of Facts, Issues and Contentions dated 29 April 2024, page 8.
However, in closing submissions at the Tribunal hearing, based on RDQK’s evidence to this Tribunal his position was that the provision of false or misleading information to the Department was ‘serious’, but not ‘very serious’, conduct.
RDQK’s written submissions set out the numerous instances on which RDQK provided false information to the Department (and to the RRT and Tribunal).[74] This included information contained in RDQK’s application for a Protection Visa in 2012, his associated interview with the Department, the subsequent RRT hearing, a Statutory Declaration made in 2015, interviews with the Department in 2016 and 2017 in relation to the 2012 Partner Visa Application, and the Tribunal’s hearing in 2019 regarding the decision to cancel RDQK’s 2012 Bridging Visa.[75]
[74] Ibid., pages 7-8.
[75] Exhibit 1, pages 150-154, 211-227, 237, 247-304; Exhibit 3, pages 25-27.
RDQK told the Tribunal that he relied on a purported migration agent to assist him with the application for a Protection Visa in 2012, when RDQK was 18 years old, and that this person, who was recommended by members of the West African community in Australia, told RDQK to maintain claims for protection which RDQK knew to be false. RDQK gave evidence that while he was young at the time, it was wrong to provide false information to the Department. In relation to his evidence to the Tribunal in 2019, RDQK told this Tribunal that his understanding at that time was informed by his then lawyer who purportedly said that he would not be granted bail if he did not have a visa, he had not yet decided whether he would plead guilty to the then alleged offence and considered that he should not make any admissions in that administrative, rather than criminal, matter.
While these explanations provide some context to the nature of the evidence RDQK gave to the Tribunal in 2019, his earlier and repeated provision of false or misleading information to the Department demonstrated a willingness to lie to authorities over a period of time in order to advantage his visa application processes and migration status in Australia, which likely led to the expenditure of significant Commonwealth resources in undertaking multiple reviews of RDQK’s false claims by the department and administrative tribunals.
Based on all of the above matters, the Tribunal finds that RDQK’s conduct in providing false or misleading information to the Department was serious and weighs in favour of exercising the discretion to refuse to grant RDQK the Visa.
For completeness, the Tribunal notes that paragraphs 8.1.1(g) and (h) are inapplicable in RDQK’s application. In this regard, RDQK has not re-offended since any formal warning or notification about the consequences of further offending in relation to his migration status and the offending was not committed in a country other than Australia.
Having regard to the evidence and the Tribunal’s findings in relation to the relevant considerations in paragraph 8.1.1 of Direction 99, the Tribunal finds that this limb of Primary Consideration 1, the nature and seriousness of RDQK’s conduct, weighs heavily in favour of exercising the discretion in subsection 501(1) of the Act to refuse to grant him the Visa.
The risk to the Australian community should RDQK commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction 99 provides as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Given the Tribunal’s findings about the objective seriousness of the offence committed by RDQK, it follows that the nature of the potential harm to the Australian community should he again engage in further criminal or other serious conduct is serious; it could involve financial, physical and psychological harm to members of the community. As the Tribunal, differently constituted, said regarding prohibited drugs generally in WGKS and Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2020] AATA 38 at [90]:
The community is harmed when illicit drugs, especially drugs of addiction such as heroin, are taken and their use promoted, given the well-known adverse health consequences for the individuals concerned (including the possibility of death by overdose), the deleterious effect on the capacity of those individuals to make a positive societal contribution and the broader social and economic costs and consequences of illicit drug use and addiction.
Accordingly, given the well-known harmful effects of drugs that are criminally prohibited, such as the methylamphetamine supplied by RDQK, the Tribunal finds that the nature of the harm to individuals or the Australian community should RDQK engage in further criminal or other serious conduct weighs heavily in favour of exercising the discretion to refuse to grant him the Visa.
Additionally, the Tribunal notes that the need to protect the Australian community from harm includes institutions, pursuant to paragraph 8.1.2(1) of Direction 99. The serious conduct of RDQK in providing false or misleading information to the Department, if repeated would, as described above in these reasons, seek to advantage his visa and migration status in Australia, but also require the expenditure of substantial Commonwealth resources to consider those claims. Moreover, providing any false or misleading information to the Department or another government institution, such as the Tribunal, demonstrates a disregard for Australia’s laws and migration processes and may constitute a criminal offence requiring possible investigation and prosecution.
In relation to the consideration under paragraph 8.1.2(2)(b) of Direction 99 of the likelihood of RDQK engaging in further criminal conduct or other serious conduct, based on the evidence before the Tribunal, it finds that prospect to be low. In reaching this finding, the Tribunal has had regard to information and evidence on the risk, evidence of RDQK’s rehabilitation, and the time he has spent in the community since the offence and the duration and purpose of his intended stay in Australia.
RDQK ultimately pleaded guilty to his offending. The Tribunal finds that RDQK’s plea of guilt indicated an acceptance of responsibility and a willingness to facilitate the course of justice.[76] This weighs in RDQK’s favour.
[76] Cameron v The Queen (2002) 209 CLR 339.
In February 2020, Yiota Zingirlis, Forensic Psychologist, provided a report to RDQK’s then solicitors following an assessment of him in advance of his sentencing for the offence of supplying a commercial quantity of a prohibited drug.[77] The report noted that RDQK ‘regretted his actions’, he acknowledged that ‘regardless of the financial issues’ he should not sell drugs and that he had ‘put other people’s lives in danger’.[78] RDQK also told the psychologist in 2020 about the guilt he experiences in relation to his actions and that he had felt ‘relieved’ upon pleading guilty to the offence, and his sleep and appetite had since improved; ‘I was guilty, I was hiding the truth, until I pled’.[79] The psychologist’s opinion was that RDQK ‘does not appear to present with any longstanding mental health issues or pervasive offending behaviour that have significantly impacted his functioning within society’, and ‘falls into a group of individuals who have a low level of risk and criminal needs that require intervention to assist with managing his vulnerability of future offending’.[80] Accordingly, the psychologist’s opinion was that this indicated that RDQK ‘has a lowered risk of reoffending than the average offender’.[81]
[77] Exhibit 1, pages 350-360.
[78] Ibid., page 352.
[79] Ibid.
[80] Ibid., pages 356-357.
[81] Ibid., page 357.
The Court’s sentencing remarks from May 2020 relevantly stated that:[82]
The outcome of the psychological assessment in the report is that it presents [RDQK] as a young man with a relatively low level of risk in reoffending.
…
[RDQK] has apparent and significant strengths in the motivation to be with and support his partner and child, and he has a positive history of gainful and stable employment prior to involvement in the present offending. He has also behaved himself in a way that brings credit to him whilst in custody, and has spent his time usefully.
…
I find that [RDQK] is contrite and reasonably insightful. His prospects of rehabilitation as a first offender and a young man with both a strong incentive and capacity for living a law-abiding life are good.
…
I have also indicated that I find his levels of contrition and insight as being, more probably than not, genuine, and in his case, there are favourable prospects for rehabilitation, in a young man with no prior convictions and whose background of some disadvantage is to be given appropriate weight.
[82] Exhibit 1, pages 98-103.
The evidence before the Tribunal was that there were no adverse incidents in relation to RDQK while in gaol for two and a half years.[83] A ‘Pre-release report’ prepared by Corrective Services in June 2020 noted that RDQK was classified as a ‘minimum security offender’, ‘has not incurred any institutional misconduct charges’ and the Corrective Services file notes recorded him as being respectful and polite towards staff.[84] The report also noted that RDQK ‘had been unable to return the [borrowed] money within the agreed timeframe and the associate had demanded his assistance in order to pay off the debt’.[85] In corroboration of RDQK’s evidence at the Tribunal hearing, the Corrective Services report stated that RDQK said he had been ‘selfish, greedy’ and had not considered the consequences of his decision, but felt like a ‘drowning man’ due to his financial issues.[86]
[83] Exhibit 3, pages 3-6.
[84] Ibid., page 9.
[85] Ibid., page 8.
[86] Ibid.
The report from 2020 also stated that RDQK ‘accepts responsibility for his offending and has been able to see the destruction that drugs have upon people, particularly during his time in custody’.[87] It also recorded that RDQK ‘is willing to undertake any intervention deemed necessary’ and was able to do so, but also, under the heading ‘Offence related programs’, that he was ‘assessed as not being eligible for programs while on remand’.[88] It was unclear whether this statement meant that RDQK was assessed as being ineligible for offence related programs for the duration of his imprisonment or only while on remand. However, if it was the former, that RDQK was deemed ineligible for offence-related courses during his imprisonment, this may explain why there was evidence of RDQK commencing and completing numerous vocational courses, but no evidence of RDQK having undertaken any rehabilitative programs in gaol that were related to his offending, noting also that it appears the psychologist in the pre-sentencing report opined that RDQK had a low level of criminal needs requiring intervention.[89]
[87] Ibid., page 9.
[88] Ibid.
[89] Exhibit 1, pages 356-357; Exhibit 3, page 9.
As set out above in these reasons, Ms De Santa Brigida, Psychologist, gave evidence to the Tribunal and confirmed her opinion, following a comprehensive assessment, that RDQK had no psychological disorder and was at low risk of reoffending given the ‘absence of typical distinctive factors of criminal involvement’.[90] She noted there were a number of protective factors in place for RDQK, such as the relationship with his wife and children, consistent employment and time in the community since being released from gaol in September 2020 without reoffending.
[90] See also Exhibit 2.
While RDQK and his family may again experience financial issues, or even financial distress, the Tribunal is satisfied that he now has a strong understanding of the manner in which to deal with such an eventuality, rather than reverting to criminal offending to seek to alleviate those financial issues. At the time of his offending in 2018, RDQK was in the same circumstances that he is in today; he was not on a permanent visa, was married and was a father. However, RDQK was then 23 years old and under significant pressure to provide financially above and beyond the payment of rent and school fees and to two households. The totality of the circumstances today can be distinguished from that earlier period of time. RDQK has clearly rehabilitated himself in gaol, he is 30 years old, accepts his wrongdoing, and the psychological evidence established that he has none of the usual indicators of recidivism. RDQK has expressed his remorse for the offence and the Tribunal accepts his stated regret at its commission, including because of his demeanour, conduct and statements to this effect at the Tribunal hearing and his conduct since being released from gaol into the community in September 2020.[91] In addition, the Tribunal notes that the evidence from RDQK’s network in Australia, although only two of whom gave testimony at the hearing, confirmed his stated remorse for the offending and rehabilitation.[92]
[91] See, for example, Exhibit 4, pages 29 and 31.
[92] See, for example, Exhibit 4, page 173, 250-251, 259, 262, and 266-267.
The Tribunal is satisfied that RDQK is likely to play a positive parental role in the future. Importantly, RDQK has been living with his children and wife in the Australian community since his release from gaol more than three and a half years ago in September 2020. The children will remain minors for approximately 11 and 17 years, respectively. There are no Court orders relating to parental access and RDQK lives with his wife and those two children. Based on the evidence before the Tribunal, RDQK works hard to provide financially for his family and undertakes household tasks, he assists with caring responsibilities for the children, is involved in his eldest child’s soccer club and places a strong emphasis on the children securing a good education.[113] The psychologist, Ms De Santa Brigida, noted that Ms G informed her that her eldest son is active but ‘not too bad’, although her second son is ‘very overactive and she struggles to care for him without the help of her husband’.[114] Ms G also told the psychologist that she would be unable to work and care for both children in Australia without the current support provided by RDQK and, in that scenario, without her being employed they ‘will have nowhere to live’.[115] RDQK’s relationship with his children was also identified as a protective factor in relation to the risk of recidivism.[116]
[113] Exhibit 4, pages 29 and 173; Exhibit 2, page 13.
[114] Exhibit 2, page 13.
[115] Ibid.
[116] Ibid., page 21.
The Tribunal also notes that, in 2020, the psychologist, Hamid Yatti, relevantly reported as follows:[117]
My observation of Ms [G]’s [eldest] son was also that he is very attached to his father who he mentioned on several occasions during our sessions. I believe deportation of Ms [G]’s partner will also have significant detrimental consequences on their son’s behavioural, emotional and psychological wellbeing. Research has consistently demonstrated lasting damage including permanent structural changes of the brain and increased likelihood of aggression, anger, drug-use and deviant behaviour in children who are brought up with absent fathers. This is compounded by cultural complexities that Ms [G] experiences such as being outcasted by her community and family.
[117] Exhibit 1 page 368. See also Exhibit 2, page 8 on the ‘effects of father absence from a young age’.
Plainly, RDQK currently fulfills a parental role to his children, but so does Ms G, their mother. The Tribunal is satisfied that the detrimental effect on the children of any separation from RDQK would be substantial, although noting that contact may be able to be maintained through electronic means if RDQK was returned to Sierra Leone.[118]
[118] Exhibit 4, pages 71-79.
The current review process, with the prospect that the decision refusing RDQK a Visa may be affirmed, has forced his wife to choose whether to remain in Australia with her children but without her husband or to leave this country and go to Sierra Leone with RDQK. Ms G gave evidence that she would not want her children growing up in Sierra Leone due to (among other things) the security situation in that country. Ms G told the Tribunal that she would remain in Australia. As a result, RDQK’s children would lose their immediate contact with their father and their relationship would likely not be as it is today. Additionally, there was evidence that securing employment in Sierra Leone would be difficult given the state of its economy, which would impact RDQK’s ability to continue to support his children from that country if they remained in Australia. The Tribunal accepts that such a situation is less than desirable for the upbringing and development of the children and their relationship with RDQK.
The Tribunal is satisfied that the best interests of RDQK’s two minor children in Australia would be served by RDQK remaining in Australia and this weighs heavily in favour of not exercising the discretion to refuse to grant him the Visa. That is, refusal of the Visa would not be in the best interests of RDQK’s two children.
RDQK’s nieces
The Tribunal had written evidence from RDQK’s cousin that he has a close connection with her three minor children in Australia.[119] RDQK is not a parent to these children, he has been absent from their lives for most of his incarceration, noting that they visited him once in gaol, and in 2019 they moved to another area of Australia.[120] However, RDQK reportedly continues to provide financial assistance to his cousin and, by extension, her children. There was no evidence regarding the present level of contact between RDQK and his nieces in Australia, but the Tribunal accepts that if RDQK were removed from Australia he would likely not have the opportunity to again have in-person contact with them, although they could maintain contact by electronic means. For these reasons, the Tribunal accepts that the best interests of these minor children weighs minimally in RDQK’s favour.
[119] Exhibit 4, pages 264-268.
[120] Ibid., page 266.
Ms T’s child
For completeness, the Tribunal does not consider that Ms T’s child, to whom RDQK provided care and support when in a relationship with Ms T, is a relevant minor child in relation to this decision-making process.[121] RDQK is not the child’s biological father, RDQK and Ms T divorced in 2019 and he has had no ongoing contact with her child following his release from gaol almost four years ago. RDQK did not contend that this child was subject to this consideration in Direction 99.
[121] Exhibit 4, pages 22-23, 236-239 and 265.
Conclusion – Primary Consideration 4
For the foregoing reasons, and taking into account the list of relevant factors in paragraph 8.4 of Direction 99 that must be considered in determining the best interests of minor children, the Tribunal finds that Primary Consideration 4 weighs heavily against exercising the discretion to refuse RDQK the Visa. That is, refusal of the Visa would not be in the best interests of the relevant minor children in Australia.
Primary Consideration 5 – Expectations of the Australian community
Paragraph 8.5(1) of Direction 99 states that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, paragraph 8.5(2) of Direction 99 provides that visa refusal may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted a visa. In accordance with paragraph 8.5(3) of Direction 99, the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Moreover, paragraph 8.5(4) of Direction 99 states that Primary Consideration 5 is about the expectations of the Australian community as a whole and decision-makers should proceed on the basis of the Government’s views articulated in relation to this consideration, without independently assessing the community’s expectations in the particular case.[122] Furthermore, as the Federal Court of Australia said in YNQY v Minister for Immigration and Border Protection, the consideration is ‘in substance...adverse to any applicant’.[123] However, it is necessary to assess the circumstances particular to RDQK in weighing up whether to exercise the discretion in section 501 of the Act. In this regard, Justice Stewart in FYBR v Minister for Home Affairs[124] said as follows:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 [now Direction 99] does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[122] See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75].
[123] [2017] FCA 1466 at [76].
[124] (2019) 272 FCR 454; [2019] FCAFC 185.
Paragraph 8.5(1) of Direction 99 makes plain that the Australian community expects that non-citizens will obey Australian laws. RDQK has breached this trust and he has been convicted of a criminal offence in Australia. RDQK was found guilty of supplying a commercial quantity of a prohibited drug. The Tribunal has found that this offending was serious. To reflect the gravity of his offending, RDQK was sentenced to a term of imprisonment of four years, with a non-parole period of two and a half years. The Tribunal finds that Primary Consideration 5 weighs very heavily against the granting of the Visa to RDQK. However, this finding is moderated by the further considerations under this primary consideration discussed immediately below in these reasons.
The Tribunal notes the principle at 5.2(3) of Direction 99 that the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they engaged in conduct, either in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. This consideration is applicable in relation to RDQK and the Tribunal finds that it weighs against him and in favour of exercising the discretion to refuse to grant the Visa.
In addition, the principles at paragraphs 5.2(2) and 5.2(4) of Direction 99 are, relevantly, that non-citizens who have engaged in criminal conduct should expect to forfeit the privilege of staying in Australia, and that Australia has a low tolerance of any criminal conduct by visa applicants or by other non-citizens who have been participating in, and contributing to, the Australian community ‘only for a short period of time’. The Tribunal finds that the first of these principles is applicable in relation to RDQK and also weighs in favour of exercising the discretion to refuse to grant him the Visa. In regard to the latter principle, the Tribunal again notes that RDQK has been employed and paid income tax during almost all of the approximately 10 years that he has lived in the Australian community when not in gaol. The Tribunal has also detailed under Primary Consideration 3 above the other activities undertaken by RDQK to contribute positively to the Australian community. In this way, the Tribunal is satisfied that RDQK has been participating in, or contributing to, the Australian community for more than only a short period of time. RDQK has resided and participated in the Australian community for approximately 12 years and has largely made a positive contribution by reference to his paid employment and community work in this country. However, the Tribunal finds that RDQK’s criminal offence and his serious conduct in providing false or misleading information to the Department on a number of occasions necessarily moderates the weight in favour of RDQK.
Additionally, RDQK arrived in Australia aged 17 in 2012. Other than two short overseas trips, he has lived in Australia for all of this more than 12-year period. While it is true that RDQK has not been in Australia for a short period of time, he has not lived in the Australian community for ‘most’ of his life or ‘from a very young age’, which would generally attract a ‘higher level of tolerance’ pursuant to paragraph 5.2(5) of Direction 99. However, RDQK has spent approximately 10 years living in the Australian community, not including his time spent in gaol, such that the Tribunal considers the Australian community will afford a degree of tolerance given this length of time. Accordingly, the Tribunal finds that this moderates the weight to be ascribed under Primary Consideration 5 in favour of exercising the discretion to refuse to grant the Visa.
As previously mentioned, the Tribunal accepts that RDQK has been making a positive contribution to the Australian community for a reasonable period of time, putting to one side the significantly detrimental contribution he made as a result of his criminal offending in 2018. RDQK has a strong employment record over a 10-year period and has received support from colleagues and other Australian citizens and residents for his continued stay in Australia. Accordingly, the Tribunal accepts that these factors also moderate the weight to be afforded to Primary Consideration 5, weighing in favour of exercising the discretion to refuse to grant RDQK the Visa.
Accordingly, on balance, the Tribunal finds that Primary Consideration 5, the expectations of the Australian community, weighs heavily in favour of exercising the discretion in subsection 501(1) of the Act to refuse to grant the Visa to RDQK.
Conclusion: Primary Considerations
In concluding its analysis of the primary considerations under Direction 99, the Tribunal has found that Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, both weigh heavily in favour of exercising the discretion under subsection 501(1) of the Act to refuse to grant RDQK the Visa. The Tribunal has also found that Primary Consideration 3, the strength, nature and duration of ties to Australia, and Primary Consideration 4, the best interests of minor children, both weigh heavily in favour of RDQK and against exercising the discretion to refuse to grant him the Visa. The Tribunal again notes that Primary Consideration 2, regarding family violence, is inapplicable and afforded no weight in this decision.
Other considerations
Paragraph 9 of Direction 99 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to) legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests. The Tribunal turns to address these listed ‘other considerations’ and notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection (Suleiman):[125]
…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 99] 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 [now Direction 99] 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 [now Direction 99] 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.[126]
Legal consequences of the decision
[125] [2018] FCA 594.
[126] Ibid at [23].
Paragraph 9.1(1) of Direction 99 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Accordingly, the Tribunal acknowledges that, as an unlawful non-citizen, following an adverse decision in this proceeding, RDQK is liable to removal from this country to Sierra Leone as soon as reasonably practicable pursuant to the Act and, in the meantime, immigration detention in Australia.
As set out in paragraph 9.1(2) of Direction 99, a non-refoulment 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. This obligation on Australia arises under international law pursuant to various international treaties and covenants. However, as noted in paragraph 9.1(3) of Direction 99, international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
That is the situation in this proceeding. RDQK did not contend that any international non-refoulment obligation was applicable to him and relevant in this proceeding. The Tribunal is satisfied that the circumstances do not indicate that there would be any non-refoulement claim, and no protection finding as defined by section 197C of the Act has been made in relation to RDQK in the course of considering a protection visa application made by him, noting again that his application in 2012 for a Protection Visa was refused by the Department, which decision was affirmed by the former RRT.[127] Accordingly, this other consideration in Direction 99 is not relevant and the Tribunal gives it no weight in this decision.
Extent of impediments if removed
[127] Exhibit 1, pages 203-292.
Paragraph 9.2(1) of Direction 99 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
RDQK’s legal representatives in this proceeding submitted that they would not ‘cavil’ with the below analysis and finding of the delegate in the reviewable decision:[128]
“... it is possible that [RDQK] may experience a degree of financial hardship adjusting to life in Sierra Leone and may find it difficult to find accommodation and meaningful employment, at least in the initial stages of his return.
“I find that [RDQK] will likely face practical, financial and emotional hardship upon a return to Sierra Leone due to the absence of family or other support and, most compellingly, separation from his wife and children.
“I find that this consideration weighs in favour of not refusing [RDQK]’s visa.”
[128] Applicant’s Statement of Fact, Issues and Contentions dated 29 April 2024, page 12.
RDQK is a citizen of Sierra Leone. He lived in that country up until he was 17 years old.[129] He is now 30. The evidence before the Tribunal indicated that RDQK presently has no known physical or psychological health issues. Accordingly, the Tribunal is satisfied that RDQK’s age and health will not likely present impediments in establishing himself and maintaining basic living standards if he is removed from Australia, and therefore does not weigh in his favour.
[129] Exhibit 4, pages 16-17.
RDQK was born and raised in Sierra Leone. He spent the overwhelming majority of his formative years in that country. There was no evidence before the Tribunal that RDQK would face any substantial language or cultural barriers if removed from Australia to Sierra Leone, although it acknowledges that he has not resided in that country for almost 13 years. Accordingly, the Tribunal is satisfied that RDQK would not face substantial language or cultural barriers if removed from Australia to his home country. The Tribunal therefore finds that this factor also does not weigh in RDQK’s favour.
In relation to social, medical and economic support available to RDQK in Sierra Leone, the Tribunal notes that he has three brothers in that country.[130] He is in contact with two of those siblings and is close to them, including by continuing to provide financial support to one brother. The Tribunal is satisfied that, as a citizen of Sierra Leone, RDQK would enjoy the same rights and support available to other citizens of that country and would therefore be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens.
[130] Exhibit 4, pages 17-19.
The Tribunal acknowledges the evidence that people in Sierra Leone may consider that RDQK ‘has money’ because he has returned from Australia and this could lead to possible adverse consequences, including being physically targeted.[131] Additionally, the Tribunal notes that the current situation in Sierra Leone appears volatile. In this regard, the ‘Bertelsmann Stiftung’s Transformation Index 2024’ country report for Sierra Leone states that:[132]
Corruption, lack of accountability, disrespect for the rule of law and human rights, and inefficiencies on all administrative levels, combined with external economic shocks, have resulted in a tremendously challenging socioeconomic environment for the population.
…
Sierra Leone is one of the poorest countries in the world. Poverty and inequality are extensive and structurally ingrained. The majority of the population lives at subsistence level and makes a living in the informal economy.
[131] Exhibit 4, pages 251 and 267.
[132] Exhibit 3, pages 107 and 119.
The Tribunal accepts that RDQK will likely face impediments in securing economic support, especially in the form of employment and financial assistance, and that this weighs in his favour. However, the weight attributable to this element is moderated because RDQK is young and has no known health issues. For the avoidance of doubt, at present, RDQK does not require any medical support. Despite this, the Tribunal accepts that there would be a period of adjustment for RDQK if removed from Australia and returned to Sierra Leone and that he will likely experience some initial emotional and financial difficulties in establishing himself in that country, including in relation to employment and economic support.[133] As a result, and based on evidence regarding the economy of Sierra Leone, the Tribunal accepts that the prospects of RDQK securing paid employment in the short term are potentially slim.[134] As a result, the Tribunal finds that these matters weigh in favour of RDQK.
[133] Exhibit 4, pages 257-259.
[134] Exhibit 3, pages 105-156.
The Tribunal is satisfied that, if removed from Australia, and despite some likely difficulties, RDQK would be able to establish himself and maintain basic living standards in Sierra Leone, in the context of what is generally available to other citizens of that country. The Tribunal again notes that RDQK would have no language or cultural barriers to overcome if he returned to his home country, and there was no evidence that he could not access any social, medical and economic support required in that country that is generally available to other citizens, although the Tribunal notes that such economic support may be sparse or ‘inadequate’ and that the overall situation in Sierra Leone would present difficulties for RDQK.[135]
[135] Ibid., page 126.
Having regard to the various factors involved in this consideration, the Tribunal finds that the extent of impediments if removed weighs in RDQK’s favour. However, for the reasons set out above, the Tribunal finds that marginal weight is attributable under this other consideration in favour of not exercising the discretion to refuse to grant RDQK the Visa.
Impact on victims
Paragraph 9.3 of Direction 99 relevantly states that decision-makers must consider the impact of the section 501 decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available. In the absence of any evidence in relation to this consideration, the Tribunal finds that it is inapplicable in this proceeding. Accordingly, the Tribunal gives this other consideration no weight in its decision.
Impact on Australian business interests
Paragraph 9.4 of Direction 99 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that RDQK has been employed or working during most of his time living in the Australian community. However, paragraph 9.4 of Direction 99, set out above, states that an employment link would generally only be given weight where the decision under section 501 of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have such an impact and RDQK made no such submission. Accordingly, this other consideration is not relevant and it is given no weight in the Tribunal’s decision.
Additional other consideration
As noted above, paragraph 9(1) of Direction 99 states that the ‘other considerations’ to be taken into account by a decision-maker are ‘not limited to’ those set out under paragraph 9 of Direction 99. To this end, in closing submissions, RDQK raised one additional consideration which the Tribunal addresses immediately below.
Consequences of adverse Tribunal decision on future visa applications by RDQK
The final consideration advanced on behalf of RDQK was the consequences of an adverse Tribunal decision under section 501 of the Act on any future visa application to reside in Australia, including for a partner visa on the basis of his marriage to Ms G or its impact on a request to the Minister under section 417 of the Act to substitute a Tribunal decision for one more favourable to RDQK.
The Tribunal accepts that an adverse decision from this Tribunal would likely have negative consequences on any future visa application made by RDQK or on a request for Ministerial intervention for a visa, together with the attendant consequences for his family. The Tribunal finds that this weighs in RDQK’s favour, albeit marginally because the substantial reason for the possibility of an adverse Tribunal decision and all of its consequences is RDQK’s previous criminal offending and other serious conduct, the former leading to a conviction, incarceration and refusal of this Visa. Moreover, other matters may also adversely affect any future consideration of an application for a visa or Ministerial intervention made by RDQK.
CONCLUSION
As a result of being sentenced to a term of imprisonment of 12 months or more, RDQK does not pass the ‘character test’ as defined in subsection 501(6) of the Act because he has a ‘substantial criminal record’. Following the Tribunal’s finding regarding the character test under the Act, the critical issue for determination was whether it should exercise the discretion under subsection 501(1) of the Act to refuse to grant RDQK the Visa. This required a consideration of Direction 99.
The Tribunal is satisfied, based on its assessment of all relevant considerations in Direction 99, that Primary Consideration 3, regarding the strength, nature and duration of ties to Australia, and Primary Consideration 4, regarding the best interests of minor children, together with the two relevant ‘other’ considerations, outweigh the remaining relevant primary considerations, being Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community.
The Tribunal has found that Primary Consideration 1 and Primary Consideration 5 weigh heavily in favour of exercising the discretion to refuse to grant RDQK the Visa. However, Primary Consideration 3 and Primary Consideration 4 also weigh heavily in favour of RDQK, with the two relevant other considerations, weighing marginally against exercising the discretion under the Act, tipping this finely balanced matter in his favour. Accordingly, RDQK’s application before the Tribunal is successful. The Tribunal hopes that RDQK continues to demonstrate the rehabilitation that he has shown since being released on parole in September 2020 and his strong commitment to his family and to the broader community.
DECISION
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review dated 19 February 2024 and makes a decision in substitution for the decision so set aside to not refuse to grant the Applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958
I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
...[SGD].....................................................................
Associate
Dated: 20 May 2024
Date(s) of hearing:
Date of last submissions:
6 and 7 May 2024
3 May 2024
Counsel for RDQK:
Representative for RDQK:
Mr Ben Zipser
Mr Bhavesh Lakhani, Path Migration
Solicitor for the Respondent:
Ms Emily Baggett, Mills Oakley
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