RJFB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2538
•10 August 2022
RJFB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2538 (10 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4015
Re:RJFB
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member M East
Date:10 August 2022
Place:Perth
The Reviewable Decision is set aside and substituted with a decision that the power conferred by s 501(1) of the Migration Act not be exercised in respect of the Applicant’s application for a Protection (subclass 866) visa.
....................[Sgd]..........................................
Member M East
CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse the Applicant’s application for a protection visa – character test – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no domestic violence – no minor children – expectations of the Australian community – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties – Reviewable Decision set aside and substituted with the decision that a decision that the power conferred by s 501(1) of the Migration Act not be exercised in respect of the Applicant’s application for a Protection (subclass 866) visa
LEGISLATION
Migration Act 1958 (Cth) ss 5(H)(1), 36(2)(a), 36(2)(aa), 36(1C), 36A, 48A, 48B, 189(1), 195A, 197A, 197C, 197C(3), 197D(2), 197D(6), 197AB, 198, 198(1), 499, 499(1), 499(2A), 501, 501E, 501(1), 501(2), 501(6), 501(6)(a), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
CZCV v Minister for Home Affairs [2019] AATA 91
Dhamija Pty Ltd and Minister for Immigration and Border Protection [2016] AATA 995
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 40
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VNPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4628
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) pages 13, 14
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) para 1142
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.2, 5.2(2), 5.2(4), 5.2(5), 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.2, 8.1.2(1), 8.1.2(2), 8.2, 8.3, 8.4, 8.4(1), 9, 9(1), 9(1)(a), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2, 9.3, 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Member M East
10 August 2022
INTRODUCTION
The Applicant seeks review of the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs now known as the Minister of Immigration, Citizenship and Multicultural Affairs, dated 19 May 2022, to refuse the Applicant’s application for a Protection (Permanent) (Class XA) visa (the visa) pursuant to s 501(1) of the Migration Act 1958 (Cth) (the MigrationAct) (the Reviewable Decision).
At the outset I would like to note that this is a difficult decision. Both parties agree that the nature of the Applicant’s offending is serious.[1] The Respondent also concedes that a protection finding has been made in respect of the Applicant.[2]
The practical and legal effect of the Reviewable Decision being affirmed is that the Applicant may face the prospect of prolonged detention.[3] At the date of my decision the Applicant is a young man in his early 20’s who is a citizen of Afghanistan. His family live in Queensland and he is currently detained on Christmas Island.
BACKGROUND
[1] Exhibit A2, 9[41]; Exhibit R2, 7[22].
[2] Exhibit R2,13[43].
[3] Section 197C of the Migration Act as amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth).
The Applicant who is a citizen of Afghanistan was born in Mashhad, Iran in 1998. His family had escaped Afghanistan in the early 1980’s after the Russian invasion. His parents met, married and had four children in Iran and lived there as refugees without any status.
The Applicant, being the eldest son, supported the family from a young age. When he was eight years old his father died of complications from diabetes.
The evidence is uncontentious that the Applicant scavenged for food and rubbish on the streets to feed the family.
In 2013 his mother was granted a sub-class 204 Women at Risk Visa and the Applicant was granted his visa as a dependent child. In 2014 they arrived in Australia and settled in Queensland. The Applicant gave evidence that he did not speak English when they moved to Australia.[4] His siblings are all Australian citizens, and his mother is a permanent resident.[5]
[4] Transcript, 31.
[5] Exhibit R2, 16[55].
On 7 March 2015, the Applicant committed two rape offences. He was convicted by a jury at trial on 1 December 2017. He was not immediately sentenced and was held on remand at the Correctional Centre. He unsuccessfully appealed his conviction and was sentenced on 7 December 2018. He was initially sentenced as an adult due to an error regarding his date of birth, to a six-year term of imprisonment for each count, to be served concurrently. After his sentencing the Applicant was incarcerated at the Correctional Centre.
On 24 June 2020, the Applicant was resentenced to two years imprisonment on each count of rape, to be served concurrently, on the basis that he was a minor at the time of the offending.
The Applicant was immediately released into immigration detention following that decision. After being held at a hotel in Brisbane (because of Covid restrictions) he was transferred to Yongah Hill Immigration Detention Centre in late 2020 and then to Christmas Island where he remains.
As a result of being sentenced to serve a term of imprisonment on a full-time basis for a period of 12 months or more, the Minister was obliged to cancel the Applicant’s visa under s 501 of the Migration Act. The decision to cancel his visa was made on 12 March 2019 and on 21 March 2019 a request for revocation of the mandatory visa cancellation was made by the Applicant. On 14 October 2020 a delegate of the Minister made a decision not to revoke the mandatory cancellation under s 501CA(4) of the Migration Act. The Applicant sought review of this decision by the Tribunal and on 7 January 2021 a differently constituted Tribunal affirmed the decision not to revoke the mandatory visa cancellation.[6]
[6] RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 40.
In the course of that decision, Senior Member O’Donovan found the Applicant was owed protection obligations.[7]
[7] Ibid [183].
The Applicant applied for the visa, which is subject of this review, on 12 November 2020.[8]
[8] Exhibit R2, 2[6].
On 25 June 2021, a delegate of the Minister found that the Applicant was a person in respect of whom Australia has protection obligations. The delegate found that because of the Applicant’s profile as a Shia Muslim of Pashtun origin he had a well-founded fear of persecution and that he was a refugee as defined by s 5H(1) of the Migration Act. The delegate also found that the Applicant was not a danger to the Australian community and therefore, s 36(1C) of the Migration Act was satisfied.[9]
[9] Exhibit A1, 6-33.
On 19 May 2022, a delegate exercised their discretion under s 501(1) of the Migration Act to refuse the visa and on the same day the Applicant applied for review of the decision with the Tribunal.[10]
[10] Exhibit R1, 4-11.
ISSUES
The issues as correctly outlined by the parties that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not, whether the Tribunal should exercise its discretion to refuse to grant the visa under s 501(1) of the Migration Act, having regard to the considerations prescribed by ‘Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
THE HEARING AND EVIDENCE
This application was heard by the Tribunal on 25 July 2022 at the Perth Registry. The hearing took place via Micro-Soft (MS) Teams.
At the commencement of the hearing, due to technological difficulties, Christmas Island was not able to establish the video link. Therefore, the decision was made to proceed with the Applicant attending only by audio. However, after the lunch adjournment the video link was established, and the Applicant attended rest of the hearing via Ms Teams video.
The Respondent was represented by Ms Jones-Bolla from Sparke Helmore who attended the hearing in person. The Applicant was represented by Mr McComber from Sentry Law who appeared via MS Teams video. The interpreter attended the hearing in person.
I would like to acknowledge Mr McComber who represented the Applicant on a pro-bono basis. Solicitors who do so provide a great service not only to the Tribunal but also the legal profession as a whole. Both he and Ms Jones-Bolla were of great assistance to the Tribunal, and I would like to thank them both for their professionalism and courtesy.
The Applicant gave oral evidence in accordance with his written witness statement at the hearing and was cross-examined. The Applicant’s mother and sister also gave evidence and were cross examined at the hearing.
The following documents were admitted into evidence at the hearing:
·Applicant's Updated Bundle of Evidence comprising of pages 1-248 including Applicant’s Reply submitted on 20 July 2022 (Exhibit A1);
·Applicant's Statement of Facts, Issues and Contentions dated 27 June 2022 (Exhibit A2);
·Section 501 'G-Documents' consisting of G1-G58; pages 1-361 (Exhibit R1);
·Respondent's Statement of Facts, Issues and Contentions dated 11 July 2022 (Exhibit R2);
·Incident Report dated 26 November 2020 (Exhibit R3);
·Incident Report dated 31 January 2021 (Exhibit R4);
·Offender Case File Details from 18 March 2020 to 24 June 2020 (Exhibit R5);
·Incident Report dated 19 and 21 October 2020 (Exhibit R6);
·Incident Report dated 22; 25; 28 and 31 October 2020 (Exhibit R7);
·Clinical Records of International Health and Medical Services from 25 June 2020 to 6 June 2022 (Exhibit R8);
·Offender Case File Details of 20 April 2018 (Exhibit R9);
·Assessment Process for placement of prisoners dated 7 December 2017 (Exhibit R10); and
·Form 23 Breach of Discipline dated 4 September 2019 (Exhibit R11).
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(1) of the Migration Act provides that “[t]he 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”.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(b)the performance of those functions; or
(c)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs now known as the Minister of Immigration, Citizenship and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with the following paragraphs being relevant to the Reviewable Decision currently before the Tribunal:
(1) 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 (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2) Specifically, 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. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. 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.
…
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to refuse… non-citizen’s visa under section 501”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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 measureable [sic] risk of causing physical harm to the Australian community.
(4)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. However, Australia may 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.
(5)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(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.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
It is not in dispute that the Applicant was convicted of two counts of rape and received a sentence of a term of imprisonment of 12 months or more.
Accordingly, as correctly noted by the Applicant’s representative, the Applicant does not pass the character test and the power to refuse his protection visa under s 501(1) of the Migration Act has been enlivened.[11]
[11] Exhibit A2, 7[34].
I therefore find that the Applicant does not satisfy the character test as defined by s 501 of the Migration Act.
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE THE GRANT OF THE VISA UNDER S 501(1) OF THE MIGRATION ACT HAVING REGARD TO THE CONSIDERATIONS PRESCRIBED BY DIRECTION 90
Protection of the Australian community (paras 8(1) and 8.1 of Direction 90)
Paragraph 8.1(1) of Direction No 90 provides 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.
Paragraph 8.1(2) of Direction No 90 then provides:
(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.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
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, , [sic] 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).
Overview of the Applicant’s offending
The Applicant was convicted at trial on two counts of rape. The circumstances of the offences were firstly, that he personally committed one count of rape and secondly, by being present at the scene he encouraged and aided the rape committed by one of his co-accused at the time. As noted above, he was sentenced on two occasions due to the error concerning his date of birth. This meant that he was a minor at the time that he committed the offences.
The Applicant was extensively cross-examined by Ms Jones-Bolla at the hearing. She questioned him about the circumstances of the offending and the details of the rape.
In response to her question as to whether the victim had requested to get out of the car, the Applicant responded:[12]
As I told you, I was drunk; like, I couldn’t remember anything; like, I don’t know if she said she’s going to go home or she said she’s going to (indistinct), because I wasn’t paying attention to her because I was talking to the driver, and then the other guy with her was in the back seat till we reached the place, you know, where what happened.
[12] Transcript, 26.
The Applicant said in relation to the details of penetration:[13]
Yes, because my – like, the other person when he came out, and then he asked me, like, she’s asking for you. I was, like, okay, and I was a virgin, I didn’t know, and then I didn’t, like, finish, you know, at all because I was very drunk, you know, even I got on top of her, and then I started feeling sick in my stomach. I just ran out of the car and then started vomiting on the ground, and then the other – the driver got pissed off and say (indistinct).
[13] Ibid 27.
The Applicant when asked by Ms Jones-Bolla whether he put his ‘penis in her vagina’ said he could not remember.[14]
[14] Ibid.
The Applicant went further:[15]
Just, like, I’m not sure, you know. Like, I took the responsibility for whatever happened, you know, like, if you happen to know about – I’ve taken the responsibility for it, but I can’t remember that, like, properly, because I was very drunk. That was my first time drinking alcohol. I was very drunk.
[15] Ibid.
Further questioning occurred with the Applicant saying he had sex with the victim for a short time, or he could not remember if he had had sex with her with Ms Jones-Bolla suggesting that ‘it’s a case that you can remember and you are choosing to say you can’t remember when it suits you’.[16]
[16] Ibid 29.
Ms Jones-Bolla further questioned the Applicant about his denial of the offences to the police when he was taken in for questioning.[17] She referred to his evidence at the previous Tribunal hearing when he said that he had sought and obtained the victim’s consent prior to having sex with her. He responded as follows:[18]
Yes, I have said the same thing before that, you know, in my opinion I had asked her, and I repeated myself a few times. Regardless of that I do take responsibility of what has happened and I am being accountable for, and I agree with the responsibility and I have done my, you know, like, time for it as well.
[17] Ibid 34-35.
[18] Ibid 35.
The Applicant further added:[19]
Well, what you’re saying there, you know, what do you mean by I don’t remember? As I explained before, you know, like, when you’re intoxicated and you’re very drunk you remember some things, you don’t remember some things, and that is very natural.
[19] Ibid.
The Applicant repeatedly stated in his evidence that he accepted what had happened and that he took responsibility for his actions but fell short of actually admitting the details of his offences and whether he had committed the rape. He also stated that he was only 16 at the time, was a virgin and it was the first time he had consumed alcohol.
The findings of the sentencing judge were as follows:[20]
At the secluded place the driver and the applicant got out of the car, the co-accused child raped the complainant. There was no particular violence involved but the sexual intercourse was clearly without the complainant’s consent. She repeatedly swore at the offenders saying she wanted to go home. After the co-accused child had sex with the complainant he got out of the car and the applicant got in and put his penis in her vagina. Again, this was over her protests that she wanted to go home but there was no particular other violence involved.
[20] Exhibit R1, 42.
The Applicant was a minor at the time of the offences, and this is a fact I must accept.[21]
[21] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Applicant’s evidence that he was not paying any attention to the victim when he started to penetrate her and therefore was not sure of her consent is clearly at odds with the remarks of the sentencing judge, which I am not permitted to depart from.
The Applicant was taken by police a few days after the rape to the station for questioning. He denied being in the car with this co-accused and denied having sex with a woman.[22]
[22] Exhibit R1, 57.
Two weeks later he was taken from his high school to the police station again. At that time, he said he was with his co-accused in the bushland but admitted to engaging in consensual sex with the victim. He was arrested and charged seven days later.[23] He was released on bail from 8 April 2015 until his conviction at trial on 1 December 2017.[24]
[23] Ibid.
[24] Ibid 106.
Whilst on bail the Applicant breached his bail conditions twice. When cross-examined, the Applicant could not clearly recall on which occasion, he had taken his mother to the doctor rendering him approximately two hours late on the day and when he had failed to report until the following day. The breaches occurred on 10 August 2015 and 18 November 2016.[25]
[25] Ibid 45-49.
Whilst I am not excusing the Applicant’s behaviour, in the context of being on bail for over two years with a daily requirement to report to the police station and the young age of the Applicant at the time I do not regard these offences as anything other than minor.
On 3 January 2017 the Applicant was arrested and charged with ‘[p]ossession of a knife in a public place or a school’.[26] The Applicant claimed he was carrying it for protection. I am of the view that this offence is more serious than the breaches of his bail conditions. Ultimately however, no conviction was recorded.[27] Whilst I am required to take into account the nature and seriousness of the Applicant’s offending, I must also look at his conduct to date.
[26] Ibid 53.
[27] Ibid 28.
Ms Jones-Bolla cross-examined the Applicant about his cannabis and other drug use. He said he had used cannabis in the past but not in prison and had been offered methamphetamines twice but did not like it and therefore, did not use it again.[28]
[28] Transcript, 40-41.
The Applicant was also questioned about his alcohol consumption. Ms Jones-Bolla referred to paragraph 17 of the Applicant’s statement, contained in Exhibit R1, where he stated that he had ‘never drank alcohol before and…have not drunk alcohol since’ the night of the offence.[29] She then directed the Applicant to the document labelled as ‘Client Incidents’ where he was found to have homebrew in his possession.[30] The Applicant explained that the homebrew belonged to another prisoner and he was only keeping it in his possession because that prisoner had threatened to inflict violence on the Applicant. He further explained that he did not know what homebrew was but he believed it was ‘just like a juice’ and that he ‘haven’t even drinked it’.[31]
[29] Exhibit R1, 104[17].
[30] Exhibit R3.
[31] Transcript, 44.
Mr Jones-Bolla then asked the Applicant whether he had the homebrew in his possession and was consuming it. He said ‘Yes, I did but it’s not mine. It was not mine. It was my roommate.’ [32]
[32] Ibid.
Again, whilst the Applicant may be misrepresenting whether he consumed the homebrew, even if he had drunk it the offending is of a minor nature which also appears to be an isolated event.
Of more significance is the allegation that the Applicant may have been involved in a sexual assault by using a ‘metal pipe to poke another prisoner’s rectum’[33] in the prison workshop. The Applicant categorically denied any involvement in the sexual assault in March 2020 in the following terms:[34]
I did not do such a thing and there is actually perfect explanation in this. The management came and talked to me. They said it was a misunderstanding and the person came to me and he apologised to me and he said I know you weren’t involved in it so that was nothing. So they put me in a room, like, a secure place for at least – I think I was there for 15 days and then I kept asking about why I’m here and they gave me a piece of paper that said you were involved in such a thing. And then I put a complaint and the management came and told me. They said (indistinct) were not involved in it and we want to (indistinct) send you back to residential area. And they said a lot of things like this happen in prison, you know. So it was nothing.
[33] Ibid 44; Exhibit R5.
[34] Transcript, 44-45.
The Applicant went on to say that there had been ‘horseplay in their workshop’.[35] He said that he was standing around and when the officers came, everybody got removed to a secure area. Ms Jones-Bolla referenced the Applicant’s employment being terminated and the Applicant explained that any small mistake in prison will result in employment being terminated. The Applicant further stated that he ‘was never breached for this incident’ and was only subjected to a total segregation for approximately 15 days.[36]
[35] Ibid 45.
[36] Ibid 45-50.
The Tribunal notes the prison documents at Exhibit R5, but also accepts that the Applicant was not in breach for the conduct. As noted to the Respondent’s representative Ms Jones-Bolla during the hearing, for me to find the Applicant committed these sexual assault offences, which are, particularly in these circumstances, very serious, I would need more than an allegation with a subsequent prison segregation order. I did find the Applicant’s evidence on this point to be quite compelling and on the evidence provided, I am unable to find the Applicant was involved in any sexual assault offences while he was in prison.
In the prison records labelled as ‘Client Incidents’ the Applicant was cited for throwing a ‘white substance’ from one compound to another inside immigration detention. The records show the substance to be ‘W-18’.[37] Neither counsel knew what this was, but basic research indicates it is some sort of synthetic drug compound. Again, the Applicant emphatically denied throwing the substance, instead he stated that he threw cigarettes over the fence to his friend wrapped in clear plastic.[38] Without any further evidence or information I am not satisfied that the Applicant was involved in this offence.
[37] Exhibit R6.
[38] Transcript, 51.
Ms Jones-Bolla questioned the Applicant about the allegation that he had self-inflicted wounds on his neck which he claimed were inflicted on him during transport by the emergency response team.[39] The Applicant again denied this allegation and due to lack of any further information I am unable to ascertain what actually happened at this time.
[39] Ibid 56.
As submitted by Mr McComber, the one offence for which the Applicant did incur a breach was for breaking a television set while he was in prison.[40]
[40] Exhibit R11.
Having regard to all of the incidents to which Ms Jones-Bolla referred the Applicant to, I find there is insufficient corroborative evidence to be satisfied that he participated in the activities alleged. The most serious of those allegations is the sexual assault in the workshop in prison perpetrated upon another prisoner with a metal pipe.
Therefore, apart from the ‘breach’ incurred on 15 August 2019 for damaging a television set, I am not satisfied the Applicant committed any further offending after his conviction and subsequent incarceration.
Assessing the nature and seriousness of the conduct
The nature of the rape convictions as well as the two-year custodial sentence imposed reflects the seriousness of the offence. The Applicant was convicted of non-consensual sex with the victim as well as being an accessory to his co-accused’s offending.
The Applicant was in the community, on bail, for in excess of two years, and during that time he twice failed to report as required by his bail conditions and was also found guilty of being in possession of a knife in a public place.
There is no evidence that there is an increasing trend of seriousness of offending by the Applicant over time.
I note the references to various incidents whilst the Applicant was in custody both in prison as well as immigration detention but apart from the breach for damage to the television set, I am not satisfied that he committed or was involved in those offences.
Despite this however, the nature of the offence, being a sexual offence is by its very nature serious.
In considering paragraph 8.1.1(1) of Direction 90 the crime for which the Applicant was convicted was sexual and therefore should be viewed very seriously. The sentence imposed was significant. Weighing against this as demonstrated by my reasons above, I do not find that there is any trend of increasing seriousness as I am unable to be satisfied that any significant breaches occurred in prison or in immigration detention.
In considering the nature and seriousness of the non-citizen’s conduct to date, I find it to be very serious. This weighs heavily in favour of refusing the application to grant the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(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.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(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.
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
The Applicant has conceded that:[41]
…were he to reoffend in a similar matter, members of the Australian community would be at risk of serious physical harm and debilitating, potentially lifelong, mental harm. However, against this, the Applicant submits that his risk of reoffending is low.
[41] Exhibit A2, 9[43].
The Tribunal finds that the nature of any further offending would be serious and has the potential to cause severe harm.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Paragraph 8.1.2 of the Direction 90 requires the decision-maker to consider the likelihood of the non-citizens engaging in any further criminal activity or other serious conduct taking into account the information and evidence on the risk of the non-citizen re-offending; and any evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since their most recent offence.
The Applicant has contended that his risk of re-offending is low for the following reasons:[42]
[42] Ibid 10-11.
(a)the Applicant has demonstrated insight into his offending;
(b)the Applicant’s offending occurred in the context of a period of cultural and linguistic adaptation that has now ended;
(c)the Applicant took ‘excellent steps towards [his] own rehabilitation’ since being imprisoned on 1 December 2017;
(d)the Applicant has prepared a ‘comprehensive rehabilitation plan’ (to use the word of Judge Devereaux SC);
(e)the Applicant had by the time of his sentencing, again in the words of Judge Devereux SC ‘taken real steps to allow yourself [the Applicant], eventually, to be released and to carry on a meaningful role in the Australian community;’
(f)the Applicant has realistic plans for his future in Australia;
(g)the ongoing threat of visa cancellation and removal to Afghanistan, and the burden that would place on his mother’s health, serves as significant incentive to avoid future criminal offending;
(h)notwithstanding that the Applicant’s most serious criminal offending occurred prior to his drug misuse and dependency (and therefore cannot be understood as a causative factor), the Applicant has taken steps to address his drug misuse;
(i)the Applicant has sought, but not received due to circumstances outside of his control, specialist trauma counselling from QPASTT and if he allowed to return to the Australia he would receive that counselling;
(j)Dr Jacqui Yoxall, forensic psychologist, has assessed the Applicant as having a low risk of reoffending.
(Footnotes removed.)
I will deal with each of these contentions separately.
Firstly, I do not necessarily accept that the Applicant has demonstrated real insight into his offending. He repeatedly said that he accepted the consequences of his conviction and that he had committed the offences. His oral testimony however varied widely as to what he recalled of the events in question. He said he was drunk, he did not ‘finish’, the assault was short, he vomited, he ‘may’ have had sex with the victim and he was not sure if the victim had consented. He said his English was poor and he was subject to peer pressure. He said he felt shame about drinking and disappointing his mother but fell short of accepting the very serious nature of the offences committed. I am not satisfied that he has demonstrated any real insight into his offending.
Secondly, I am not convinced that because the offending occurred in the ‘context of a period of cultural and linguistic adaptation’ that has now ended necessarily equates to him having a low risk of re-offending.
Under cross-examination the Applicant said that he understood the need for the victim to say yes before having sex with her.[43]
[43] Transcript, 32.
The fact that the Applicant now has a reasonably good command of the English language does not mean he is at a lower risk of offending. He knew the victim was not consenting and still proceeded to rape her. He has been incarcerated both in prison and in immigration detention for several years since that time. There is no evidence that he has in fact had a period of cultural adaptation in the intervening years. I am not satisfied this is demonstrative of a lower chance of re-offending.
Thirdly, the Tribunal accepts and acknowledges that the Applicant has been involved in a number of programs while incarcerated.[44] Whilst this is a positive sign it again does not equate to a basis for finding the Applicant’s risk of re-offending is low. Similarly, any intended rehabilitation again does not cause me to draw the conclusion that his chance of re-offending is low.
[44] Exhibit R1, 115-134; the Applicant completed the following courses: Lives Lived Well; My Relapse Prevention and Management Plan; Perform routine gas metal arc welding; Certificate I in skills for Vocational Pathways; Recovery from Substance Abuse and Certificate II in Logistics.
Fourthly, I take note of the sentencing remarks of Judge Devereaux and his real concern that the sentencing could lead to dire consequences for the Applicant with respect to his visa and his hope for the Applicant should he be released into the Australian community. I take the Judge’s comments on face value and accept this is in the Applicant’s favour when determining his risk of future re-offending.
Fifthly, in relation to his ongoing plans for his future and the threat of future removal should he offend again the Applicant gave the following evidence:[45]
Well, like, if you think about it – about like – see, I committed an offence, you know, yes, that’s right, and then I’ve been in jail for five years and, like, all my life been wasted here, you know. And I don’t know what makes people think that I will commit again and I will destroy my life all over again. Like, you know? Like, why would I do such a thing to destroy my life all over again and be in jail again and detention centre again and then all – go through all these problems all over again and again. What’s the point of it? Like, I don’t see any point in that, you know. I want to a be a good person for the community. I want to be a useful person for the community, for my family and for the people around me.
[45] Transcript, 20.
The Applicant’s response is very understandable. To put the situation in context, he had little schooling whilst growing up in Iran. By all accounts he and his family barely survived. He started school in Queensland in 2014, making friends with others from similar cultural backgrounds. He committed the offences just under 12 months after arriving, when he was 16 years old. He was on bail until his conviction in 2017 and has been incarcerated since that time. To think that he has any practical or realistic plans for his future beyond returning to his family is not reasonable. He is uneducated and has only just learned to speak English. It is not clear whether he has the ability to read and write in any language, although there is a suggestion that he has basic reading and writing skills in Dari.[46]
[46] Exhibit R1, 142.
With respect to the Applicant’s drug use, there is no evidence to suggest this is an ongoing problem. He said he tried marijuana whilst on bail and methamphetamine on two occasions. I am of the view that this has no bearing on his likelihood of re-offending.
With respect to the specialist trauma counselling from Queensland Program of Assistance to Survivor of Torture and Trauma (QPASTT), the Applicant’s evidence was that he started it but when it was discovered that he was a minor he was stopped from doing the course. I agree he had had little counselling for sexual trauma, but this is due to no fault if his own. This would need to be addressed in the community.
Unfortunately, due to some ‘resource-related issues’[47] the Applicant was unable to call Dr Yoxall as a witness. I have therefore had regard to her report dated 10 October 2020 which was produced for the purposes of the previous application before Senior Member O’Donovan.[48]
[47] Transcript, 3.
[48] Exhibit R1, 135-170.
Dr Yoxall describes the Applicant’s difficult upbringing with the early passing of his father and how he would roam the streets ‘collecting recyclables that he would try to claim money for’. He said he and his siblings were often hungry. She refers to a history of sexual abuse in the following terms:[49]
…as a child he was sexually abused by a man whom he met on the streets, who gave him a job. He said the money from the job assisted him to support the family. He said he couldn’t tell his mother about the abuse because he knew she would stop him from associating with the abuser and he would then not be able to derive money for the family. He said, ‘… the family needed me to work’. He said that the only way that he coped with the abuse was to ‘… cut myself off (mentally) and not think about it’. He said at times he felt suicidal.
[49] Ibid 141.
Dr Yoxall, in describing the offending does so in not dissimilar terms to those of the Applicant himself in cross-examination. She recounts him saying that he knew he needed consent but had difficulty negotiating it because of his limited grasp of English, thought that the victim had given consent, but cannot recall having sex with her because he was so intoxicated. He said he recalled feeling nauseous and thinking he was going to vomit.[50]
[50] Ibid 143.
Dr Yoxall recounts the shame the Applicant felt of his conduct during the offending because alcohol and sex before marriage is strictly forbidden in his religion.
Dr Yoxall formed the conclusion that the Applicant has lived with chronic and severe post-traumatic stress disorder (PTSD) arising from the traumatic events he experienced in his childhood. Furthermore, she states that he has lived with PTSD for many years ‘undiagnosed and untreated’.[51]
[51] Ibid 160.
I have difficulty with Dr Yoxall’s conclusion that the Applicant suffers from PTSD when there has been no formal assessment or diagnosis of the condition. She has not referred to any diagnostic tools used in making this assessment. Whilst it could be inferred that the Applicant could be suffering from PTSD given his early upbringing, there is insufficient expert evidence provided to persuade me of the probability of that diagnosis. Similarly, she refers to the Applicant suffering from an Adjustment Disorder in response to his incarceration and detention. She said that should resolve if he were to be released into the community. I therefore do not consider the possible diagnosis of PTSD to be relevant to my considerations.
Dr Yoxall’s conclusion was:[52]
Overall, it is my assessment that if [the Applicant’s] vulnerability to substance misuse is managed and he is treated for the PTSD and Adjustment Disorder (the latter of which would resolve if he returned to community in Australia), then his overall risk of sexual reoffending and general reoffending would be substantially reduced and I would consider his risk of reoffending to be low.
[52] Ibid 162.
Ms Jones-Bolla in her closing submissions referred to the Applicant not attending any substantial treatment for his mental health.[53]
[53] Transcript, 102; Exhibit R8.
Whilst it is clear that the Applicant has had some incidents of self-harm, depression and anxiety and disrupted mood, I am not satisfied the evidence demonstrates that he is suffering from a diagnosed mental health condition.
Dr Yoxall states that the Applicant’s risk of re-offending is low if his substance misuse is managed, and he is treated for PTSD. As stated, there is insufficient evidence for the diagnosis of PTSD. Secondly, there is no evidence that the Applicant has an ongoing substance misuse problem. He conceded he had tried cannabis and methamphetamine and possibly some homebrew whilst in detention but that falls far short of substance misuse. At best he could be described as having a vulnerability to substance misuse, but I also note he has undergone programs whilst incarcerated.[54]
[54] Exhibit R1, 115.
As noted in closing submissions by Ms Jones-Bolla ‘[i]n light of that, regardless of what name you put to it, he has had limited treatment to date in respect of his mental health, and limited treatment in respect of his sexual offending’.[55]
[55] Transcript, 102.
I accept that it is relevant to the risk of future re-offending that a person must have insight to their offending. I also accept the Applicant’s statements at face value that he understands what he has done and that it was wrong. What is unclear, both on the written documents and oral evidence is whether the Applicant’s inconsistent answers were designed to be self-serving or if he was genuinely confused and just does not understand and remember the events which led to his conviction.
The Applicant’s young age is undisputed. His drinking appears to be accepted, his inexperience with women also appears to be uncontradicted. On my interpretation of his evidence, I am not entirely convinced that his confusion and inconsistencies were because he was being self-serving.
The sentencing judge and indeed the prosecution noted that there was no apparent intention to commit a sexual assault on the night (in that it was not pre-meditated) and there was no element of violence involved. It is not indicative of a pattern of behaviour but nonetheless rape is in and of itself a serious crime.
The sentencing judge made the following comments:[56]
…but it is not open to say – subject to one thing that I mention of you [the Applicant] later – that you have taken responsibility for your actions, demonstrated any degree of insight into the effect of your actions on the other person, or demonstrated a willingness to facilitate the course of justice…
[56] Exhibit R1, 31.
I agree that the Applicant has not demonstrated any real insight into his offending, but I also note that after listening to and observing the Applicant and reviewing the report of Dr Yoxall, he genuinely appears to have little recollection of what happened on the night. If the circumstances of his age, his intoxication, his alleged virginity and lack of memory about whether he ‘finished’ are all taken into account, it is not clear that he actually understands what he did. He said repeatedly he understands he has committed an offence and will take the consequences for it. It seems though that he did not fully comprehend his actions at the time.
In no way I am minimising the offence or the traumatic impact it must have had on the victim. The Applicant was convicted of sexual offences and sentenced accordingly. Nor am I saying he had demonstrated any real insight. These are serious offences. What I am saying is that the Applicant may lack insight because he does not really remember what he did on the night in question due to the combination of factors listed above. This accords with Dr Yoxall’s opinion. To discount those factors when assessing his level of insight is in my view wrong.
I find that the Applicant does lack insight into his offending which may have arisen from his young age, lack of life experience and a genuine inability to remember and understand his actions when he committed the offences.
As noted earlier in these reasons the Applicant has undertaken a number of courses whilst he has been incarcerated.[57]
[57] Ibid 115; the Applicant completed the following courses: Lives Lived Well; My Relapse Prevention and Management Plan; Perform routine gas metal arc welding; Certificate I in skills for Vocational Pathways; Recovery from Substance Abuse and Certificate II in Logistics.
I am required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires an assessment of the likelihood of re-offending. There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[58]
[58]VNPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4628, [52].
Both the Applicant’s mother and sister gave evidence in support of the Applicant. Statements in support were also provided by his brothers. They said they would support him and will ensure that he did not engage in future criminal activity. Ms Jones-Bolla argued that those protective factors were in place previously and were ineffective at stopping the offending. With all due respect to Ms Jones-Bolla I consider this argument to be circular. Clearly his mother and sister were not aware of the offending prior to it taking place. There has not been any further offending and now they are well aware of his convictions. His sister, whilst acknowledging his convictions, said she still found it difficult to believe that her brother had committed such an offence. The extent to which the Applicant’s family ties serve as a protective barrier to him engaging in future criminal conduct is yet to be seen. I can accept however that they have said they will do their best to watch and support him and try to stop any future criminal conduct.
Having regard to all of the protective factors listed by the Applicant’s representative I do not find them compelling in finding in favour of the Applicant with respect to his possible re-offending. The only thing I am prepared to accept is Dr Yoxall’s report where she assesses the Applicant’s risk of re-offending as low. I acknowledge she qualifies her opinion on the basis of his PTSD and Adjustment Disorder being managed. For the reasons given above, I am not satisfied a diagnosis of PTSD has been made and unfortunately, Dr Yoxall was not available for questioning. Whilst the Applicant says he has demonstrated some insight into his offending, it still falls short of acknowledging his criminal behaviour.
Furthermore, I am prepared to accept that the Applicant’s family will provide some protective measures against future re-offending.
I therefore find, taking into account all of the above factors, that the Applicant has a low risk of re-offending.
The Applicant’s offending is very serious, and I find there is a low risk of him re-offending. Any future conduct of a similar nature would be serious with the likelihood of severe harm being suffered.
As a whole I find that the first primary consideration, the protection of the Australian community, weighs moderately against the Applicant being granted a visa.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
There is no evidence before the Tribunal in relation to the Applicant’s involvement in family violence and both parties concede that this consideration is not relevant to my decision.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
There is no evidence before the Tribunal in relation to this consideration and both parties concede that this consideration is not relevant to my decision.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under s 501 of the Migration Act.
These expectations are set out in paragraph 8.4 of Direction No 90, which provides:
(1)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.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
As noted by Senior Member Dr Evans-Bonner in the recent decision of Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022.
99.Thus, I must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia.
100.As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
101.In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
... Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195. It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
102.Further detail about the Australian community’s expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns, including through specific conduct listed in sub-paras 8.4(2)(a)–(f). The types of specific conduct listed include the commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled. As I noted above, on two occasions when sentencing the Applicant for the Cancellation Offences, the sentencing Judge referred to the victim as being “vulnerable” (G4/33; 35), and I accept that assessment. I also found that the offending was violent and serious. Therefore, as this type of offending raises serious character concerns, the Australian community would expect the Applicant’s Visa to remain cancelled.
103.Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(Original emphasis.)
In observing the norm and in accordance with the guidance provided by principles 5.2(2) – (5) of Direction 90, the Australian community would expect that the Applicant should not hold a visa on account of his offending. They submit the Applicant has not lived in Australia for a sufficiently long period of time so as to be entitled to the ‘higher degree of tolerance’ referred to in principle 5.2(4) of Direction 90. They submit the Applicant had lived in Australia for less than 12 months when he committed the rape offence.
The Respondent further contends that this is a matter where principle 5.2(5) of Direction 90 is directly engaged in that the inherent nature of certain conduct such as that for which the Applicant was convicted is so serious that even strong countervailing considerations are insufficient to not refuse the visa even if the Applicant does not pose a measurable risk of causing physical harm to the Australian community.
The Applicant in his Reply[59] referred to the authority of Dhamija Pty Ltd and Minister for Immigration and Border Protection [60] (Dhamija) where the Tribunal set aside a decision to refuse a visa under s 501(1) of the Migration Act where the non-citizen had previously been convicted of an offence causing the death of another person.
[59] Exhibit A1.
[60] [2016] AATA 995.
Ms Jones-Bolla in her opening statements[61] referred to this matter noting that the charge was of dangerous driving occasioning death.
[61] Transcript, 11.
The Tribunal, having read the decision, agrees that factually the circumstances are vastly different in that there was no criminal intent on behalf of the applicant in that matter. The sentencing judge noted the applicant’s ‘manner of driving did not involve an abandonment of responsibility or a high degree of moral culpability and that the offence fell very much to the lower end of the range of seriousness of such offences and involved a low degree of moral culpability’.[62]
[62] Dhamija Pty Ltd and Minister for Immigration and Border Protection [2016] AATA 995, [14].
The Applicant in this matter further submitted:[63]
While the Applicant admits that his offending was serious – even extremely serious – he does not accept that the objective seriousness of offending falls within the scope of paragraph [5.2(5)] of MD90. In this regard it is noted that the Applicant was a minor at the time of his offending and is not a repeat criminal or sexual offender. Further, we submit that the two-year sentence of imprisonment ultimately imposed on the Applicant is not reflective of the kind of serious criminal offending with which paragraph [5.2(5)] is concerned.
[63] Exhibit A1.
I agree with Ms Jones-Bolla’s submission that the matter of Dhamija is not particularly helpful in the circumstances of this case.
However, I do not agree with the Respondent’s submissions that these particular circumstances fall within the ambit of offending contemplated by paragraph 5.2(5) of the Direction 90. There is no doubt that sexual assault is a serious offence with often catastrophic consequences for the victim. In context however, there was no history or repeat offending, pre-meditation or violence involved. The nature of the sexual assault is not, in itself, I find sufficiently serious to fall within the ambit of that paragraph.
The Applicant has submitted that less weight should be afforded to this primary consideration because of the following factors:[64]
(a)the Applicant was a minor at the time of his offending;
(b)the Applicant has been found to be owed protection obligations;
(c)the Applicant’s risk of reoffending is low;
(d)the Applicant has already been detained for 54 months (since 1 December 2017); and
(e)refusal of the Applicant’s application for a protection visa is likely to result in his indefinite detention.
[64] Exhibit A2, 11[49].
The Respondent has submitted that these factors are brought to account when the Tribunal has regard to Protection of the Australian Community and Other consideration and where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously.
I agree that these factors have already been considered in the context of the Applicant’s risk of re-offending and will again be considered under the non-refoulement considerations.
I also note the decision of Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26]. Interestingly, this was a matter where the issue was considered inversely to the respondent’s submission. That is in the context of jurisdictional error and whether the Tribunal had failed to take into account a factor in relation to each consideration. In that matter, Perram J had said that the decision-maker was not required to take a matter into account repetitiously.
I have no doubt that the nature of the crimes for which the Applicant was convicted have significantly breached the public trust and would give rise to an expectation on behalf of the Australian community that he should not enjoy the ‘privilege’[65] of being granted a visa.
[65] Direction 90, para 5.2(1).
I find that moderate weight should be given to this consideration in refusing the Applicant’s visa.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
Paragraph 9.1 of Direction 90 relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C 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.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
…
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
Section 36A of the Migration Act relevantly provides:
(1) In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a)the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b)the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c)the non-citizen:
(i)satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii)would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).
(2) The Minister must do so:
(a)before deciding whether to grant or refuse to grant the visa; and
(b)before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and
(c)before considering whether the grant of the visa is prevented by any provision of the Act or regulations;
…
Section 189(1) of the Migration Act provides:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Section 198(1) of the Migration Act provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
Section 197C of the Migration Act relevantly provides:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i)the decision in which the protection finding was made has been quashed or set aside;
(ii)a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii)the non-citizen has asked the Minister, in writing, to be removed to the country.
…
In the present case the Respondent accepts that a protection finding has been made in relation to the Applicant.
I have considered the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)[66] relating to the addition of s 197C into the Migration Act which provided that:
Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
[66] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), 1142.
The expression of that policy in the Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).[67] Pages 13–14 of that Explanatory Memorandum states the following:
The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future. The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.
The Minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, if the Minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to decide.
The Minister also has a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (residence determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be a detention placement.
The Minister’s powers to consider whether to grant a visa to permit an unlawful non-citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non-refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account. This enables the least restrictive option to be implemented for the person having regard to their circumstances.
[67] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).
The Respondent has submitted that:[68]
48.Given there is no time limit for the Minister to make a decision under s 195A or section 197AB, and the decision is non-compellable, the Minister acknowledges that a consequence of visa refusal is therefore that the Applicant may face prolonged detention.
49.Whilst it is open to the Tribunal to give any impact of prolonged detention on the Applicant weight against refusing the grant of the visa, the Minister contends that consideration of the combined legal and practical consequences of non-revocation does not outweigh the significant weight the Tribunal should give to the protection and expectations of the Australian community.
[68] Exhibit R2. The Tribunal notes that in para 49 the word ‘non revocation’ should read ‘refusal’.
The legal and practical consequences of a refusal to grant this visa will be that the Applicant will not be removed to Afghanistan. It is open to the Minister to consider alternative management options available including those under ss195A and 197AB of the Migration Act or resettlement in a third country. It should be noted however that these powers are not compellable and there is no time limit within which the Minister can make a decision.
There is no probative evidence before me that the Minister has had any consideration of the above options which in any case would in all likelihood post-date my decision in this matter.
The reality is that the Applicant was a child (16 years old) when he committed the offences and has been incarcerated since 1 December 2017. The very real outcome of an adverse decision for him is that he could face several years more of if not indefinite detention. There is simply no evidence for me to find otherwise.
I have significant concerns regarding the prospect of prolonged detention for such a young man. He has served his time in a correctional facility. He is currently detained on Christmas Island. His family live in Queensland and has no financial means to travel and visit him. He is isolated in such a way that I cannot accept that this could persist for a prolonged period of time.
In weighing the non-refoulement obligation (or more accurately, the practical and legal consequences of not granting the Applicant the visa) against the seriousness of the Applicant’s offending, this consideration weighs heavily in favour of the grant of the visa.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen 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.
The Applicant, if he were to be removed, would be removed to Afghanistan. The evidence is uncontradicted that he was born in Iran and has no connections to Afghanistan. He would most likely face significant impediments if removed there.
Whilst significant, the Applicant concedes that the consideration cannot weigh against exercising the refusal power because he cannot be removed to Afghanistan.[69]
[69] Exhibit A2, 15[65].
The Respondent similarly concedes that the Applicant would face some impediments if removed to Afghanistan but neutral weight should be given to this consideration because s 197C(3) of the Migration Act expressly provides that removal under s 198 of the Migration Act is not required or authorised in respect of an unlawful non-citizen to a country in respect of which a protection finding has been made.[70]
[70] Exhibit R2, 15[51].
I agree that neutral weight should be given to this consideration.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3 of Direction 90 requires consideration of the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour and their family.
There is no evidence from the victims of the Applicant’s crime in respect of any impact a visa refusal decision would have on them.
I find that neutral weight should be given to this consideration in the exercise of my discretion.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Strength, nature and duration of ties to Australia
Paragraph 9.4 of Direction 90 requires me to have regard to the strength, nature and duration of the non-citizen’s ties to Australia and the impact on Australian business interests.
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, para 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
I note that this is not a cancellation or revocation of a mandatory cancellation which requires me to have regard to paragraph 9.4.1(2) of Direction 90. Nonetheless, I note the Applicant’s submissions and have considered this paragraph.
The Applicant has his mother, sister and two younger brothers in Australia. His siblings are Australian citizens, and his mother is a permanent resident.
The Applicant’s mother and his sister both gave compelling evidence about the impact the Applicant’s offending and subsequent incarceration and detention have had on the family. The Applicant has played a pivotal role within his family whilst growing up in Iran and events since he came to Australia have had a devastating effect on his mother and his siblings. His mother has suffered from ill health both physical and mental.
I am satisfied that the effect of refusing the Applicant’s visa would have a significantly detrimental effect on his mother and three siblings.
The Applicant began offending shortly after arriving in Australia, but I also note he was only 15 years old when he arrived. He has not lived lawfully in any other country prior to arriving here. It is not possible for me to judge the contribution that the Applicant may have made to his community given the young age at which he was incarcerated.
I agree that the Applicant offended shortly after arriving and has not had the opportunity to contribute positively to society. His young age, however, should not be a factor which weighs against him.
I find that the impact on the Applicant’s immediate family members weighs slightly against refusal of his visa.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)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 parties agree that the impact of my decision on Australian business interests is not relevant consideration in the circumstances of the current application.
THE WEIGHING EXERCISE
Direction 90 gives direction to a decision-maker on how to apply the primary and other considerations. Relevantly, paragraph 7 provides:
(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 other considerations
(3)One or more primary considerations may outweigh other primary considerations
A number of cases have considered how the balancing of the considerations should be done. Whilst referring to Directions 65 and 79, Direction 90 is materially in the same terms and the same principles apply. Colvin J in Suleiman v Minister for Immigration and Border Protection[71] and Wigney J at para [22] of the Full Court’s decision in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[72] both considered this issue. The Tribunal in CZCV v Minister for Home Affairs[73] at para [164] noted as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so…
[71] [2018] FCA 594.
[72] [2021] FCA 775.
[73] [2019] AATA 91.
Having regard to the guidance outlined above, I have proceeded to weigh the various considerations in the Direction 90.
With respect to the first primary consideration, the protection of the Australian community, I find that the consideration weighs moderately against the Applicant being granted his visa.
Specifically, I find that the nature and seriousness of the Applicant’s offending to weigh against the grant of the visa. I find the nature of the harm to the community if the Applicant re-offends to be significant, but I find his risk of re-offending to be low.
The second and third primary considerations, being family violence and best interests of minor children are not relevant and therefore are neutral in my consideration.
The fourth primary consideration, the expectations of the Australian community weighs against the grant of the Applicant’s visa. As outlined above, I give this consideration moderate weight in favour of refusing the visa.
In relation to the ‘other considerations’, I find that consideration of the international non-refoulement obligations and the threat of indefinite detention weighs significantly in favour of the grant of the visa.
The extent of impediments and impact on victims both have neutral weight to be applied.
The consideration of the links of the Australian community weighs in favour of granting the Applicant his visa and I give slight weight to this consideration.
Having weighed the considerations in favour of granting the Applicant his visa and those that weigh against, I find myself in a situation of almost equal weighting.
There is no doubt a serious crime was committed. Balanced against this however, the legal consequence of refusing the Applicant his visa is prolonged detention.
If I were to affirm the decision in all likelihood it would ultimately become the Minister’s problem. If there was not the threat of prolonged detention for this young man, I would have little hesitation in doing so.
However, having considered the evidence provided I find that the correct and preferable decision in this matter is to set aside the decision under review and substitute with a decision that the power conferred by s 501(1) of the Migration Act not be exercised in respect of the Applicant’s application for a Protection (subclass 866) visa.
DECISION
The Reviewable Decision is set aside and substituted with a decision that the power conferred by s 501(1) of the Migration Act not be exercised in respect of the Applicant’s application for a Protection (subclass 866) visa.
I certify that the preceding 190 (One hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member M East
...............[Sgd]..............................................
Associate
Dated: 10 August 2022
Date of hearing: 25 July 2022 Counsel for the Applicant: Mr Joel McComber Solicitors for the Applicant: Sentry Law Counsel for the Respondent: Ms Daphne Jones-Bolla Solicitors for the Respondent: Sparke Helmore
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