RVKP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1761
•21 June 2023
RVKP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1761 (21 June 2023)
Division: GENERAL DIVISION
File Number(s): 2023/2146
Re:RVKP
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Raif
Date:21 June 2023
Place:Sydney
The Tribunal sets aside the decision under review and in substitution decides that the discretion to refuse the application for a Class XE Safe Haven Enterprise (Subclass 790) visa under section 501 of the Migration Act 1958 (Cth) is not exercised.
..............................[SGD].......................................
Senior Member K Raif
CATCHWORDS
MIGRATION – refusal to grant a visa – failure to pass the character test – Ministerial Direction No. 99 – nature and seriousness of offending conduct – sexual based offence involving a child – meaning of a ‘child’ in the Migration Act – victim 17-years old – protection of the Australian community – strength, nature, and duration of ties to Australia – impediments to removal – other considerations – applicant subject of a protection finding – indefinite detention – decision set aside and substituted
LEGISLATION
Crimes Act 1900 (NSW)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HWLJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1039
Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Raif
21 June 2023
INTRODUCTION
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent) made on 2 March 2023 to refuse to grant a Class XE Safe Haven Enterprise (Subclass 790) visa (SHEV) to the Applicant.
The Applicant is a national of Iran, born in February 1981. He travelled to Australia in July 2013 as an unauthorised maritime arrival and in June 2016 he made an application for the SHEV.
In August 2017 the Applicant was convicted of an offence, described below.
In October 2022 the delegate issued the Applicant with the Notice of Intention to Consider Refusal (NOICR) of the visa under section 501 of the Migration Act 1958 (the Act) because the Applicant had been convicted of an offence and it was determined that he may not meet the character test as defined in paragraph 501(6)(e). The Applicant was invited to make representations about the NOICR and did so and on 2 March 2023 the delegate decided to refuse to grant the SHEV to the Applicant. The delegate determined that the Applicant did not pass the character test and exercised the discretion to refuse to grant the visa. The Applicant seeks review of the delegate’s decision.
The issues before the Tribunal are:
(a)whether the Applicant passes the character test as required by section 501 of the Act and, if not;
(b)whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.
LEGISLATIVE FRAMEWORK
Pursuant to subsection 501(1) of the Act, the Tribunal acting as the decision maker may affirm a decision to refuse the grant of a visa if it is satisfied that the Applicant does not pass the character test.
The character test is set out at subsection 501(6) of the Act. Relevantly paragraph 501(6)(e) of the Act provides that a person does not pass a character test if:
(e)A court in Australia or a foreign country has
(i)Convicted the person of one or more sexually based offences involving a child…
Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Ministerial Direction No. 99 (the Direction).
On 23 January 2023, Direction No.99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 99 states that:
(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.
The primary considerations which are set out in section 8 of Part 2 of the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of section 9 of the Direction:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]
‘Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’”[2]
[1] [2018] FCA 594.
[2] [2018] FCA 594., [23].
Section 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. As noted above, paragraph 501(6)(e) relevantly states that a person does not pass the character test if a court in Australia has convicted the person of one or more sexually based offences involving a child.
The Applicant’s criminal history report, a copy of which has been provided to the Tribunal, indicates that in February 2017 the Applicant had been convicted of the following offence: “film person’s private parts without consent”, contrary to section 91L of the Crimes Act 1900 (NSW) (the Crimes Act).
The terms ‘sexually based offence involving a child’ is not defined in the Act. In Morgan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[3] the Tribunal held that it is necessary to look at the actual content of the elements of the offences of which the Applicant was convicted.
[3] [2022] AATA 189 at [22]
The content of the elements of the offence is described more fully below. Essentially, the Applicant entered a change room in a clothing store next to a 17-year-old female, placed his phone low to film her changing clothes and masturbated.
One of the elements of the offence, as set out in section 91L of the Crimes Act, is that the act of filming occurs for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification. The Applicant appears to have conceded that he was seeking sexual arousal or gratification (masturbating) at the time of filming. In the circumstances, the Tribunal is of the view that the offence can be classified as a sexually based offence.
The Tribunal has also considered whether the offence involved a child, noting that under the Crimes Act, a child is defined as being 16 years of age or under. The Applicant submits that the delegate erred in finding that the offence involved a child and that a person between 16 and 18 years of age is defined as a ‘young person’ in the Crimes Act. The Respondent submits that the Tribunal is acting under the Migration Act rather than the state Crimes Act and must adopt the interpretation that furthers the principles of the Migration Act (section 15AA of the Acts Interpretation Act). Section 5CA of the Migration Act defines a child by reference to the Family Law Act 1975 which defines a child as a person under 18. The Respondent submits that paragraph 501(6)(e) and Division 10 of the Crimes Act serve different functions and it would be an odd outcome for section 501 to have different application on the basis that state-based legislation provides a different definition of a child. The Respondent submits that paragraph 501(6)(e) does not expressly limit its operation to persons under 16 and does not exclude its operation in relation to persons between 16 and 18. In this case, the offence was a sexual based offence (involving filming private parts for sexual arousal or gratification), the victim was 17 years of age and was a ‘child’ under the Migration Act irrespective of whether she would have been considered a child or a young person for the purposes of the Crimes Act.
It is not in dispute that the victim in that case was a 17-year old girl at the time the offence took place. The Tribunal has had regard to the comments made in HWLJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[4] at [43]:
The Applicant’s submission that the age of the complainants was not an essential element of the Tasmanian offences does not alter the fact that the offences were sexual offences involving a minor. During submissions the Applicant correctly accepted that if the complainant of a sexual offence was a minor, that offence could satisfy s 501(6)(e)(i) of the Migration Act, regardless of whether the age was an element of the offence. As a matter of statutory construction, the text, considered in context and given the purpose of the provision, supports that conclusion.
[4] [2020] FCA 1039
That reasoning seems to support the view that age of the victim is not a required element of the relevant offence for the purposes of paragraph 501(6)(e) of the Act. What is relevant for the purpose of establishing whether a person is convicted of a sexually based offence involving a child, is that the offence is sexually based, and (applying the definition of ‘child’ in the Migration Act) the victim of the offence is a under 18 years of age.
The Tribunal finds that the offence can be classified as a sexually based offence involving a child. Therefore, the Tribunal finds that the Applicant has been convicted of a sexually based offence involving a child. The Tribunal finds that the Applicant does not pass the character test as set out in paragraph 501(6)(e) of the Act. The Tribunal finds that the discretion to refuse to grant the visa is enlivened.
The Tribunal is mindful that if the above interpretation is incorrect, the outcome of this review would be that the Applicant passes the character test and the discretion to refuse to grant the visa is not enlivened. The Tribunal has formed the view that the Applicant does not pass the character test, that the discretion is enlivened and for the reasons that follow, that it should not be exercised to refuse to grant the visa. Thus, even if the Tribunal is wrong in its finding that the offence committed by the Applicant was a sexually based offence involving a child, the practical outcome of this review would be no different.
CONSIDERATION OF DISCRETION
Protection of the Australian community
In considering this primary consideration, paragraph 8.1 of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this consideration, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors.
The Tribunal has had regard to the NSW Police Facts sheet which sets out the police record of the circumstances of the offence. (The applicant does not appear to dispute the accuracy of that information). It is recorded that on 14 February 2017 the Applicant entered a store and followed a young female shopper into the change room cubicle, moving in the stall alongside the other shopper. It is reported that the Applicant then used the video function on his phone to record the female in the adjacent stall. Security was called and the Applicant attempted to leave the store. He was stopped by the security officer and his phone was confiscated. It is reported that when the police viewed the video, the face of the accused was seen on the video, as well as the female in her panties. It is reported that during the police interview, the Applicant admitted that he was the person in the video and was masturbating. The Applicant admitted that he did not have permission to film and stated that he ‘made a mistake’ and ‘did the wrong thing’.
The Facts Sheet also notes that additional footage was found on the phone of another incident in June 2016 when a video was taken of a young male child with a female in the process of trying on clothes. This and other recordings had been the subject of the applicant’s cross-examination in oral evidence. In his written submissions the Applicant notes that he has not been convicted in relation to that incident and the only conviction relates to the February 2017 incident. While in oral evidence the Applicant stated that he either did not engage in similar conduct in the past or that he could not recall, and he suggested that the other video in question may have been sent to him.
As the Applicant has not been convicted of any other offence, his engagement in any criminal conduct other than relating to the 2017 incident has not been established and in the circumstances, the Tribunal does not place any adverse weight on that incident (or any other alleged incident), noting that no offences has been proven.
The Tribunal finds that the offence was of sexual nature and in relation to a child. Paragraph 8.1.1(1) relevantly states that sexual crimes and crimes against children are viewed ‘very seriously’. For that reason, the Tribunal finds it to be a serious offence.
The Applicant was sentenced to a three-year good behaviour bond and no custodial sentence was imposed. The Respondent submits that the three-year duration of the section 9 bond and the associated supervision requirements are reflective of the objective seriousness of the offence. The Tribunal is of the view, however, that the imposition of a non-custodial sentence (noting that the maximum penalty for the offence is 2 years imprisonment) suggests that the court viewed the offence as being at the lower end of seriousness. It is unfortunate that the sentencing remarks have not been made available to the Tribunal.
In considering the frequency of the offending and whether there is a trend of increasing seriousness, the Respondent invites the Tribunal to take into account the Applicant’s recorded admission in his interviews with his psychologist and with Corrective Services NSW that there had been other occasions when he had ‘touched himself inappropriately’ when in public and to also have regard to the June 2016 incident which appears to have been recorded on the Applicant’s phone. Some questions were posed to the applicant about these incidents during the hearing. However, as noted above, there have been no charges, let alone convictions, in relation to these incidents. There has been no finding that the Applicant did engage in any other conduct that was contrary to the laws of Australia. The Tribunal does not consider it appropriate to have regard to conduct, even if it seems to have been admitted by the Applicant, which had not been proven and where no finding of guilt has been made.
The Applicant has been convicted of a single offence. There is no frequency of offending and no increasing trend or increasing seriousness in relation to the Applicant’s conduct. There is no evidence of any repeat offending, no evidence that the Applicant had provided false or misleading information to the Department of Immigration and Multicultural Affairs (the Department), or that he had been previously formally warned about the consequences of reoffending and no evidence that the Applicant has been convicted of an offence in another country.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted 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;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct…
As the offending involved sexual conduct, the Tribunal is of the view that if the Applicant was to engage in similar conduct in the future, it could cause psychological harm to those who are subjected to his behaviour. There is no suggestion that the Applicant is likely to engage in other types of criminal or other serious conduct.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Applicant submits that he is not a future risk to the Australian community. The Applicant notes that he has been living in the community since the offending conduct in 2017 and did not commit any further offending. The Applicant notes that he has been permitted to live in the community on a Bridging visa, which was only recently cancelled, and he was assessed as having a ‘low risk’ of reoffending by virtue of being allowed to live in the community. The Applicant submits that the Minister had ‘tacitly’ assessed him as being of no risk to the community by virtue of the fact that he was permitted to live in the community after committing the offence and even after his bridging visa was cancelled.
The application for the SHEV included a report from the Service for the treatment and rehabilitation of torture and trauma survivors (STARTTS), which refers to the Applicant having presented with symptoms of depression, grief and PTSD and the Applicant reported exposure to multiple instances of trauma and discrimination in Iran.
In his submission to the delegate in November 2022 the Applicant explains his conduct leading to the conviction by stating that he was released from the court and given a good behaviour bond and since the incident, he does not have any criminal record and has not committed any crime. The Applicant states that he is ‘very sorry’ for the incident, which happened a long time ago when he was new to the country.
In another submission on behalf of the Applicant, dated 19 April 2021, it is stated that the Applicant told the court the offence involved a serious misjudgement on his part, and he had admitted that his conduct was wrong and expressed remorse and contrition. It was submitted that the Applicant had rehabilitated and did not reoffend, and he also received psychological counselling.
The Tribunal has been provided with the Case Note Report prepared by the Department of Corrective Services. It asserts that the Applicant reported that he could not recall his offending behaviour. It is stated that the Applicant’s risk of sexual reoffending was assessed as being above average or moderate to high. The Tribunal has also had regard to the presentencing report which states that the Applicant reported to have no recollection of the offence, he stated that he was ashamed of his behaviour and accepted counselling and appears motivated to continue treatment.
The Tribunal has had regard to the report prepared by Mr Sam Borenstein, a clinical psychologist, dated 8 April 2017. It is reported that the Applicant claimed he did not remember the incident and claimed that he has a problem of doing things he does not want. The Applicant stated that the incident was ‘out of his control’ and he did not know why it happened. The Applicant claimed that he felt embarrassed and guilty when engaging in appropriate behaviour, and he referred to memory lapses. Mr Borenstein notes that the Applicant has no criminal antecedents and there is nothing in his history to predict antisocial or criminogenic tendencies. Mr Borenstein notes that the Applicant confirmed there had been other occasions when he noticed women and touched himself inappropriately in public and he also confirmed that he became aroused and unable to control impulses. Mr Borenstein refers to extremely severe symptoms of depression, anxiety, PTSD and stress and has expressed the view that there is a direct correlation between the Applicant’s chronic and untreated psychological disorders and the offending behaviour.
In his own statement prepared in May 2021 the Applicant states that when trying on clothes, he saw the bare legs of a lady in an adjacent fitting area, he got tempted and began filming the lady. He did not realise at the time that what he was doing was wrong. The Applicant states that the ‘wrong deed’ was caused by the stressors and pressures of the lack of clarity regarding his visa situation, separation from his family and friends resulting in depression, which affected his ability to differentiate between right and wrong. The Applicant states that he had seen a psychologist and attended STARTTS and the ‘problem’ was treated during these sessions.
In his written statement to the Tribunal dated 14 April 2023 the Applicant refers to his loneliness and inability to find a partner and also his depression, as factors which lead him to make a mistake. The Applicant refers to his attendance at psychological sessions. The Applicant states that he is a different person and has never been violent. The Applicant refers to his shame and regret about the offending behaviour. The Applicant presented a written character statement from his landlord Ms D’B who refers to the Applicant’s circumstances and the effect the visa refusal would have on him. Ms D’B also gave oral evidence to the Tribunal, stating that the Applicant has been living with her for 7 years and has become a ‘family member’, and participates in family functions. Ms D’B states that the offending was out of character and at no time has she been concerned about her or her family’s safety around the Applicant.
There is also before the Tribunal a written statement from the Applicant’s pastor Mr KP and the Tribunal has also had regard to his oral evidence. Pastor KP seems to attribute the commission of the offence to the Applicant’s immaturity and lack of Christian values. Pastor KP told the Tribunal that the Applicant has made good progress in his Christian life and adopting Christian values, is now more mature, does not want to harm anyone and will not reoffend, having now appreciated the consequences of reoffending. The Tribunal acknowledges Pastor KP’s views but does not necessarily share his view that the lack of Christian values contributed to the offence and, conversely, that the acquisition of Christian values by the Applicant will act as a strong incentive for him not to reoffend. The Tribunal also acknowledges that Pastor KP was not aware of the full circumstances of the offending.
The Tribunal has received evidence from the Applicant’s friend, Mr AK. Mr AK stated that he has known the Applicant for a number of years and knows him to be of good character. He spoke about the hardship the Applicant had experienced at the time of the offence and said that at the time ‘he was not himself’. (Mr AK’s knowledge of the circumstances of the offending was somewhat limited.) Mr AK spoke about the hardship the Applicant would experience if he was to return to his home country.
In oral evidence the Applicant stated that the conviction educational as he has learned the Australian law and the importance of complying with the law. The Applicant states that he was suffering from depression at the time of the offence, he was away from his family and under pressure, which contributed to the offending. (He concedes that these circumstances continue to exist.) He states that he has since completed counselling, so he is no longer the same person. He states that he has tried to be a good person and has recovered from his depression and would never commit any offence again. The Applicant notes that he had spent time in the community before his bridging visa was cancelled and had not committed any other offences. The Applicant refers to having changed and having learned from his counselling, although he concedes he has not completed the sexual offenders program as was recommended during sentencing (stating it was unavailable).
There is also before the Tribunal a “psychological certificate” dated 20 February 2020. Mr Seyed Hosseinipur states that he had been seeing the Applicant between January 2018 and June 2019 and provided him psychotherapy and counselling with components of cognitive behavioural therapy.
The Respondent submits that the Applicant has not accepted responsibility for his actions and in his various statements and submissions he blames other factors for his conduct. The Respondent notes that in oral evidence, the Applicant has shown little understanding of the nature and consequence of his actions and the Respondent submits there is insufficient evidence of rehabilitation.
The Tribunal acknowledges that the Applicant seeks to explain his conduct by reference to external factors, but also notes that he has expressed remorse for his conduct. The Tribunal considers it significant that the offending conduct involved a single offence which occurred more than six years ago. There has been no repeated offending despite the Applicant living in the community and it cannot be said, in the circumstances, that the Applicant has a propensity to engage in criminal conduct. Whatever were the reasons for the Applicant’s past offending and whether or not he continues to blame external factors for his conduct or recognises his own culpability, the Tribunal has formed the view that the overall circumstances (being a single offence with no history of any criminal conduct in the past six years while the Applicant lived in the community) justifies a finding that there is low risk of reoffending. In reaching that conclusion, the Tribunal has had regard to the fact that the Applicant had undergone regular counselling (noting that Mr Borenstein links the Applicant’s behaviour to his psychological state). The Tribunal also places some weight on the fact that the Applicant now fully appreciates that any future criminal conduct may have adverse implications on his visa. Essentially, the Applicant now understands that he may not have the opportunity to remain in Australia, or if the visa is granted, he may lose that opportunity of living in Australia in the community, which is clearly his strong preference, if he commits other offences. In the Tribunal’s view, the Applicant’s desire to remain in Australia and not in detention will act as a strong incentive for him not to reoffend.
The Tribunal acknowledges that the Corrective Services report assessed the Applicant as having moderate to high risk of reoffending, and the Tribunal has given that finding some weight. However, the Tribunal notes that the assessment was made in 2017 shortly after the offence was committed and the Tribunal has had the benefit of knowing that the Applicant has lived in the community for a further six years without reoffending.
The Tribunal has formed the view that the risk of reoffending is low. Noting the seriousness of the offence and the harm reoffending could cause, the Tribunal finds that this consideration weighs in favour of exercising discretion to refuse to grant the visa but only marginally so.
Family Violence
There is no suggestion that the present offence involved family violence. This consideration is neutral.
The strength, nature and duration of ties to Australia.
In his submission to the Tribunal the Applicant states that he lived in Australia since 2013 and has a wide range of friends and associates within the community and his church. He states that his friends are concerned about his well-being and safety. The Applicant submitted to the Tribunal a number of statements which are referred to above. There is otherwise very limited evidence of the Applicant’s ties to Australia. The Applicant has no family in Australia. He told the Tribunal that he did engage in employment but had stopped working due to an injury.
The Tribunal is prepared to accept that the Applicant has formed friendships and associations in Australia, including through his attendance at church but the Tribunal also accepts the Respondent’s submission that there is a paucity of evidence relating to the applicant’s ties to Australia. Given the scarce evidence about the strength of the Applicant’s ties, the Tribunal gives this consideration only limited weight against the exercise of discretion to refuse to grant the visa.
The best interests of minor children in Australia.
There is no evidence, and the Applicant does not claim, that there are any minor children in Australia who would be affected by the decision to refuse to grant the visa to the Applicant. This consideration is neutral.
Expectations of the Australian community
Paragraph 8.5 of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
(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.’
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
(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.’
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[5] (‘FYBR’) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[6]
[5] [2019] FCAFC 185
[6] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018]FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given nature of the Applicant’s conduct, the community expectations would weigh in favour of exercising discretion to refuse to grant the visa.
OTHER CONSIDERATIONS
It is necessary to look at the other considerations listed in section 9 of the Direction.
Legal consequence of the decision
It is not in dispute in this case that the Applicant is subject of a protection finding made in March 2021. Paragraph 9.1.1 of the Direction provides that
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns 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 Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA 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.
The Tribunal accepts that a protection finding implies that Australia owes protection obligations to the Applicant.
DFAT Country report on Iran, published in 2020, states the following at 5.27 with respect to involuntary returnees.
‘Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.’
As the Applicant arrived in Australia prior to 2018, the Memorandum of Understanding on Consular Matters does not apply to him. Thus, if the Applicant does not wish to return to Iran voluntarily (as he has indicated and noting that he is the subject of a protection finding), and if his visa is not reinstated or granted another visa, the Applicant is likely to face prolonged or, possibly, indefinite detention. This consideration weighs heavily against exercising discretion to refuse to grant the visa.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
As noted above, there is little likelihood of the Applicant being removed to Iran, noting that a protection finding has been made with respect to him and also that Iran is unlikely to accept him if he is not a voluntary returnee. The following comments are made in appreciation of the fact that the applicant is unlikely to be removed.
The Applicant is 42 years of age. He has been diagnosed with a number of health conditions including depression, anxiety and PTSD, for which he is being treated. In oral evidence he also described an incident at work in 2020, resulting in an injury and an operation. The Respondent concedes that the Applicant may not receive adequate services and support to treat his mental health issues.
There is no suggestion the Applicant would experience any language or cultural barriers. There is little evidence before the Tribunal indicating any social, medical and/or economic support that would be available to the Applicant in his home country.
The Tribunal is of the view that there would be some detriment to the Applicant if he is removed but notes that there little or no likelihood of that occurring. This consideration weighs somewhat against exercising discretion to refuse to grant the visa.
Impact on victims
There is no evidence before the Tribunal regarding impact on victims. This consideration is neutral.
Impact on Australian business interests
There is no evidence before the Tribunal regarding impact on Australian business interests. This consideration is neutral.
CONCLUSION
The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances. The Tribunal has found that the Applicant’s offending was serious, being an offence of a sexual nature against a minor, however the Tribunal has also formed the view that there was only a low risk of the Applicant reoffending. The Tribunal has found that the primary considerations of the protection of the Australian community and expectations of the community weigh in favour of exercising the discretion, while the strength, nature and duration of ties to Australia weighs against the exercise of discretion. Other primary considerations are neutral.
With respect to other considerations, as the Applicant is unlikely to be removed from Australia, there is unlikely to be an impediment to him. The legal consequences of decision weighs strongly against the exercise of discretion, while other considerations are neutral.
In the circumstances of this case, the Tribunal has decided to give the greatest weight to the legal consequences of the decision and, in particular, that if the Applicant’s visa is not granted, there is a prospect of the Applicant remaining in detention for a lengthy period or even indefinitely. In the Tribunal’s view, and in the circumstances of this case where the Tribunal had determined there was only a low risk of reoffending, the hardship that would be caused by lengthy or indefinite detention and the impact on the Applicant’s mental health, should be given greatest weight.
Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should not be exercised.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the discretion to refuse the application for a Class XE Safe Haven Enterprise (Subclass 790) visa under section 501 of the Migration Act 1958 (Cth) is not exercised.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif
........................................................................
Associate
Dated: 21 June 2023
Date(s) of hearing:
6 June 2023
Solicitors for the Applicant:
Mr Fardin Nikjoo, Nikjoo Lawyers
Solicitors for the Joined Party:
Ms Ada Wong, Mills Oakley
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