RYTV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3835

RYTV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3835 (16 November 2022)
Division:GENERAL DIVISION
File Number: 2022/6866
Re:RYTV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Boyle
Date:16 November 2022
Place:Perth

The decision of the delegate of the Minister dated 19 August 2022 to refuse to grant the Applicant a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
MIGRATION – s 501(1) of the Migration Act – decision of a delegate of the Minister to refuse to grant the Applicant a Bridging E (Class WE) visa – whether Tribunal should exercise discretion in s 501(1) to refuse to grant the Applicant the visa – Direction 90 applied – Applicant complicit in crimes against humanity – Applicant a citizen of Turkey who has been in Australia for over 10 years – Applicant’s involvement with JITEM – Applicant has no family in Australia – no chronological endpoint to detention – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth) ss 36A, 36(2)(a), 36(2)(aa), 36(2C)(a)(i), 36(2C)(a)(iii), 46B, 48A, 189, 195A, 197AB, 197C, 197C(3), 197C(5)(f), 197D, 198, 499(1), 499(2A), 500(1)(b), 501, 501(1), 501(6), 501(6)(ba)(iii), 501E
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Cases
Adekoya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 768
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
MRWF v Minister for Immigration and Border Protection [2018] FCA 504
MRWF v Minister for Home Affairs [2018] FCAFC 206
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
Secondary Materials
Amnesty International, The impact of indefinite detention: the case to change Australia’s mandatory detention regime (Report, 2005)
Ben Doherty, ‘Indefinite detention of refugees is unlawful under international law, but Australia has quietly made it legal’, The Guardian (online, 16 May 2021) < Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) arts 1A(2), 1F, 1F(a), 1F(c)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Interview with the Royal Australian and New Zealand College of Psychiatrists (Eleanor Hall, 25 May 2005)
Janette P Green and Kathy Eagar, ‘The health of people in Australian immigration detention centres’ (2010) 192(2) The Medical Journal of Australia 65–70
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
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 s 501CA (20 December 2018)
Minister for Immigration, Citizenship 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 5.1, 5.2,5.2(2), 5.2(3), 5.2(5), 6, 7, 7(2), 8, 8.1, 8.1.1, 8.1.1(1), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(c), 8.2, 8.3, 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(4), 9, 9.1, 9.1(2), 9.2, 9.3, 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2, Annexure A
Physicians for Human Rights, Report: Health effects of indefinite detention (Report, 21 June 2011)
REASONS FOR DECISION
Deputy President Boyle
16 November 2022
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 19 August 2022[1] to refuse to grant him a Bridging E (Class WE) visa (BVE) (the visa) under s 501(1) of the Migration Act 1958 (Cth) (Act).
[1] G-documents 11.
The Applicant applied for a bridging visa on the basis of an application for Ministerial intervention following the refusal of a protection visa application. The Applicant’s protection visa application was refused as the delegate found that the Applicant was excluded under art 1F of the Refugees Convention[2] on the basis that he was complicit in crimes against humanity. The Applicant unsuccessfully sought merits review and then judicial review of the decision to refuse his protection visa application.
[2] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
This application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Act.
THE ISSUES
The issues before the Tribunal are whether the Applicant passes the character test as defined in s 501(6) of the Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
BACKGROUND
The Applicant is a 55-year-old citizen of Turkey. He is of Kurdish ethnicity and arrived in Australia on 4 February 2010 on a Student – ELICOS Sector (subclass 570) visa (student visa).
The Applicant held the student visa until 12 January 2011 and held BVEs between 13 January 2011 and 21 April 2011. On 21 April 2011 the Applicant lodged an application for a Protection (subclass 866) visa (the protection visa), which was refused on 31 October 2011.
The Applicant applied to the Refugee Review Tribunal (RRT) for a review of the decision to refuse the protection visa. The RRT remitted the application for reconsideration with a direction that the Applicant satisfies art 1A(2) of the Refugees Convention. In reaching that decision, the RRT found that there were “serious reasons for considering that the applicant has committed a relevant crime or act contemplated in Article 1F”.[3]
[3] G-documents 496.
The Applicant’s protection visa application was again refused on 12 March 2014.[4] In reaching the decision to refuse to grant the visa, the delegate of the Minister stated that they were satisfied that there were serious reasons for considering that arts 1F(a) and 1F(c) are applicable, and as such the Applicant was excluded from the protection of the Refugees Convention. The delegate further found that the Applicant also fell within the ambit of sub-ss 36(2C)(a)(i) and (iii) of the Act, and consequently he was taken to not satisfy s 36(2)(aa). The delegate was therefore not satisfied that Australia owed protection obligations to the Applicant under s 36(2)(aa) of the Act.
[4] G-documents 444–67.
The Applicant applied to the Tribunal for review of the decision to refuse the protection visa. On 19 May 2017 the decision to refuse the application for the protection visa was affirmed by the Tribunal.[5]
[5] G-documents 166–443.
On 23 December 2019 the Applicant lodged a request for Ministerial Intervention under s 46B of the Act. The Applicant also lodged an application for a BVE. The Applicant received a notice of intention to consider refusal of the application for that BVE under s 501(1) of the Act and withdrew that application.
On 13 January 2021, the Applicant lodged the application for the visa that he now seeks and received a notice of intention to consider refusal on 21 February 2021.
On 15 October 2021 the Applicant’s request for Ministerial Intervention under s 48B of the Act was refused, and the Applicant advised accordingly, on the basis that the request did not meet the Minister’s Guidelines – s 48B cases and requests for s 48B Ministerial Intervention.[6]
[6] G-documents 64.
On 24 August 2022, the Applicant received notice of the decision of the delegate of the Minister dated 19 August 2022 to refuse the application the subject of this proceeding (see [1] above). On 25 August 2022 the Applicant lodged the present application for review of that decision with the Tribunal.
the hearing and the evidence
The application was heard on 3 November 2022. The Applicant was represented by Ms A Graziotti and the Minister was represented by Mr A Gerrard. The Applicant was the only witness called to give evidence at the hearing. The following documents were before me:
(a)the Applicant’s Statement of Facts, Issues and Contentions (SFIC) filed 27 September 2022;
(b)the Minister’s SFIC filed 18 October 2022;
(c)G-documents filed by the respondent on 30 August 2022;
(d)a letter from Nafisa Mohideen, registered psychologist at Asetts dated 27 September 2022;
(e)a letter from Dr Susan Lutton, psychiatrist at Asetts dated 18 October 2022;
(f)a letter from Dr Susan Lutton, psychiatrist at Asetts dated 18 December 2019;
(g)a treatment summary report by Bonnie Beazley, senior counsellor at Asetts dated 31 October 2022;
(h)ICSE visa list record for the Applicant, handed up at the hearing (R1); and
(i)ICSE visa details for the Applicant, handed up at the hearing (R2).
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act is as follows:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
Section 501(6) of the Act relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
…
(ba)the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
…
(iii)the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; …
(Original emphasis.)
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that. “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[7] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.[8] (Direction 79).
[7] Minister for Immigration, Citizenship 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).
[8] 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 s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Sub-paragraphs 5.1(1) and (2) provide:
(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 … 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.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under s 501. These principles are as follows:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   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 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 noncitizens 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 risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the visa should be refused.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 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.
Paragraph 8 of Direction 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 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.
CONSIDERATION
Does the Applicant pass the character test?
Paragraph 19 of the Applicant’s SFIC was as follows:
For the reasons set out below, the Applicant does not press a contention that he does not fail the character test.
At paras 25 and 26 of his SFIC, the Applicant made the following contentions:
Based on an objective consideration of the Tribunal decision dated 19 May 2017, the Federal Court decision dated 13 April 2018 and the decision of the Full Federal Court on 21 November 2018, the Applicant concedes that sufficient evidence exists to suggest that he has been involved in crimes against humanity.
(Original emphasis.)
I sought clarification of these statements from Ms Gaziotti at the commencement of the hearing as follows:
TRIBUNAL: Am I to take that to be the applicant concedes or agrees that he does not pass the character test?
MS GRAZIOTTI: Essentially, yes. I mean, there’s enough case law in this matter or there’s a Full Federal Court decision which found there was no error in Kendall DP’s decision about whether or not there was serious reasons to consider or suggest that he’d been involved in those particular activities.
The Minister proceeded on the basis that it was not in dispute that the Applicant fails the character test.[9] The hearing proceeded on that basis and, in any event, for the reasons set out below, I find that the Applicant does not pass the character test because there are reasonable grounds to suspect that the Applicant has been involved in a crime against humanity, a crime involving torture, or a crime that is otherwise of serious international concern for the purposes of s 501(6)(ba)(iii) of the Act.
[9] Minister’s SFIC para 4.
The Tribunal’s decision of 19 May 2017 (see [9] above) was subject to a non-publication order, however, there were extensive references to the Tribunal’s findings and to the evidence upon which those findings were based in the subsequent judicial reviews by the Federal Court of Australia[10] and then by the Full Court of the Federal Court of Australia.[11] Barker J in MRWF 1 found:
[10] MRWF v Minister for Immigration and Border Protection [2018] FCA 504 (MRWF 1).
[11] MRWF v Minister for Home Affairs [2018] FCAFC 206 (MRWF 2).
55. Turning to applicant’s submission that the Tribunal stated the wrong test for determining complicity, or applied the test incorrectly having regard to the facts found by it, I do not consider that either proposition can be sustained.
56. The Tribunal dealt with the topic of “complicity” in committing crimes at [32][61] of its reasons, including what is required before a finding is made that there are “serious reasons for considering” that Art 1F applies.
…
58. By reference to SHCB – a decision of the Full Court of this Court on point – the Tribunal accepted the submission of counsel for the applicant that:
·the applicant need not actually have directly committed the act in question;
·there must be awareness of the act of participation and a conscious decision to participate in aiding, abetting or otherwise assisting in the commission of the crime. This includes planning, instigating, ordering or committing;
·there does not necessarily need to be a finding with respect to a specific incident. If there are many such incidents and the applicant took steps knowing that those actions would result in criminal activity that would suffice;
·there must be the “requisite intent” to assist in the act; mere knowledge is not sufficient;
·presence alone at the scene of a crime is not sufficient, but if presence is coupled with other circumstantial or other evidence then it may be used;
·membership of an organisation is usually insufficient by itself to establish complicity, depending on the principal aims of the organisation and the closeness of the applicant to the organisation’s decisionmaking process; and
·rank may be an important factor. A high ranking officer may be held responsible as they are closer to the decisionmaking process.
…
62. Relying on these various authorities, the Tribunal then stated, at [61]:
As it has been agreed between the parties that JITEM is indeed guilty of crimes against humanity, the core issue before this Tribunal is whether MRWF was complicit in the commission of those crimes. On the basis of the jurisprudence outlined above, to so find the Tribunal requires strong evidence to that effect. To make any decision that effectively denies [the applicant] of a protection visa without strong evidence of complicity would, to again quote the Supreme Court of Canada, prevent an unreasonable extension of the notion of criminal participation. The modes of commission recognized in international criminal law articulate a broad concept of complicity, but even at their broadest they do not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesced to the group’s criminal purposes.
…
80. The Tribunal, at [137], said it was not necessary for it to make a finding that the applicant had committed a crime against humanity because of complicity that there be a finding with respect to a specific incident or incidents committed by JITEM, “if there are findings that [the applicant] engaged in behaviour knowing that the harm resulting from illegal acts by JITEM would be the consequence of his actions”. The Tribunal further explained:
Put simply, the Tribunal must have strong reasons for considering that in his capacity as an informer for the Jandarma, [the applicant] provided information to JITEM that resulted in the commission of crimes against humanity by JITEM, that [the applicant] did so with a common purpose and was aware that harm would result to individuals as a result of his information being provided to JITEM. There must also be strong evidence that there was the requisite intent to assist in JITEM’s campaign of terror against the PKK and knowledge that harm that flow from JITEM’s actions. As discussed below, the Tribunal finds this to be the case.
In my view, having regard to the earlier statement of principles, the principle to be applied cannot be said to have been formulated in error by the Tribunal; indeed I consider, based on the authorities cited above, it was correctly formulated.
…
88. Then, critically, at [154], the Tribunal observed that it had “reviewed” all of the extensive evidence before it. When it said “reviewed”, I take the Tribunal to mean that it had considered the evidence, including competing accounts. I pause here to say that that plainly was the case. It must be accepted that the Tribunal, from the sequence of the evidence that it recorded, and the record made of evidence it regarded significant, both before 2014 and after 2014, provided by the applicant, had regard to this evidence. The Tribunal then said, at [154], that on the basis of that evidence it “finds that by his own account, in late 1992, [the applicant] began acting as informer with Jandarma in Turkey”. The Tribunal said:
In his own words, and as supported by the relevant country information before the RRT and as outlined above, the Jandarma are part of the Turkish defence forces and are responsible for maintaining security in rural parts of Turkey. JITEM is part of the Jandarma and is responsible for identifying and managing terrorist risks.
…
90. At [156], the Tribunal said it did not accept the applicant’s later evidence where he suggested that he knew little about JITEM and was, as far as he was aware, only working for the Jandarma. The Tribunal expressly found in this paragraph that this later evidence represented little more than an attempt by the applicant to “re-write a history that served him well for the purposes of his protection visa application but which is clearly ‘problematic’ for the purposes of any Article 1F Refugees Convention analysis”.
…
92. At [158], the Tribunal said that “this becomes particularly troubling post 1993”. The point the Tribunal then made was that, having admitted that he was, at least from 1993, aware that people associated with the PKK were dying at the hands of JITEM, he continued to work as an informant, well aware that the information he was collecting would be used by JITEM to identify PKK activities and those associated with the PKK. The Tribunal said that, in the circumstances, to suggest, as the applicant did, that his actions could not and did not result in harm, “is not credible”.
…
99. It was the result of that analysis and statement that the Tribunal, at [163], then said:
Overall, having assessed the evidence before it, the Tribunal finds that [the applicant] was actively engaged in activities as an informer for the Jandarma that supported the initiatives of JITEM and which would have allowed JITEM to target PKK members and inflict individual and systemic harm of the sort for which JITEM has now been found guilty under international law.
At [163], the Tribunal added:
While there is no evidence that the information provided by [the applicant], directly or indirectly, to JITEM, resulted in any one incident or series of incidents, this is not required. The Tribunal must only have serious reasons for considering that [the applicant’s] complicity allowed JITEM to carry out a reign of terror that resulted in unimaginable atrocities from at least 1993 (if not prior) and over an extended period of time. The evidence in this regard is strong and convincing. [The applicant] supported JITEM’s anti-PKK initiatives and voluntarily contributed in a significant way to JITEM’s activities – activities that on the record resulted in death and torture. The fate of the PKK members informed on by [the applicant] was not in doubt and indeed eminently foreseeable. [The applicant] did what he did with the requisite intent to assist in JITEM’s activities.

Independently of the concessions made by the Applicant, the findings of the Tribunal in its decision dated 19 May 2017 and the judgments of the Courts in MRWF 1 and MRWF 2, there is evidence in the form of statements made by the Applicant upon which it would be reasonable to suspect that the Applicant had been involved in crimes against humanity, crimes involving torture or other crimes of serious international concern. This includes statements made by the Applicant in his visa application quoted in the Tribunal’s decision dated 19 May 2017 as follows:
Towards the end of 1992 I was approached by a person from JANDARMA to collect information about the PKK (outlawed Kurdistan Workers’ Party) from among the IRAQI Kurdish refugees in CIZRE. The IRAQI Kurds were starting to return home. The person from JANDARMA requested that I find out information about whether there were Turkish PKK people using the return of the IRAQI Kurdish refugees to IRAQ as a cover for their own movements between IRAQ and TURKEY. PKK is considered by Turkey to be a Kurdish terrorist organisation. I did not see anything wrong with this request.
I was also asked to go to northern IRAQ to gather information about PKK. CIZRE was close to the IRAQI border. The PKK would often do hit and run campaigns from the inside northern IRAQ. I would be sent to northern IRAQ about every four to six months to check out information or obtain information that JANDARMA had received. The last time I went to northern IRAQ was around October 1996.
The person from JANDARMA told me my official role would continue to be that of a clerk at the conscription office but to report to JANDARMA every fortnight or so if I had any information.
In April 1993 there was a change of commander within JANDARMA. CEMAL TEMIZOZ took command. This is when the atrocities started. It was common knowledge that the JANDARMA were torturing people in a basement downstairs in KAMIL ATAG’s residence. He was the KORUCUBASI (chief of village guards), later to become the mayor of CIZRE in 1994 as a result of a rigged election.
It was at this time I realised that I was being used by JITEM (JANDARMA ISTIHBARAT VE TERORLE MUCADELE – Gendarmerie Intelligence and Anti- Terror Organisation), which was part of JANDARMA. However even at this stage I believed that JITEM was a legitimate organization against PKK terrorists, although I did not agree with JITEM’s methods.
As I started to hear about torture and murders committed by JITEM, I started to question myself about the legitimacy of my job.
The above statement, prepared with the help of his migration agent, is clear evidence that between 1992 and 1996 the Applicant willingly provided information to his military superiors which he knew, from at least 1993 onwards, was being used to identify Kurds and Kurdistan Workers’ Party (PKK) members who were rounded up and tortured by JITEM. The Applicant was cross-examined as follows:
MR GERRARD:         It was common knowledge that Jandarma were torturing   people in the basement downstairs.
INTERPRETER:        It wasn’t – it wasn’t Jandarma torturing. It was JITEM.
MR GERRARD:         So, in April 1993 you knew, as did most of the people in the   area, that JITEM were torturing people?
INTERPRETER:        Khamil was the prime person of Jamahl Tamazos - - -
MR GERRARD:         No. That’s not the question I asked, RYTV. I said, in April   1993 you knew that JITEM were torturing people?
INTERPRETER:        They started in 1993. They came in 1993. After a while they   – they came in April 1993. Then when we heard that they   were torturing it was – it was horrendous.
MR GERRARD:         Yes. The next paragraph you say:
It was at this time I realised that I was being used by JITEM.
So, at that time you knew?
The issue for determination is therefore whether, having regard to Direction 90, the discretion in s 501(1) of the Act not to grant the visa should be exercised.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 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:
(1)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;
(2)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;
(3)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;
(4)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(5)the cumulative effect of repeated offending;
(6)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(7)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).
The Applicant made the following submissions in his SFIC:
(a)The Applicant has not been convicted on any offence in any country.
(b)Due to the unusual nature of the concerns in relation to the Applicant’s past behaviour, most of the considerations identified in para 8.1.1(1), with the exception of paras 8.1.1(1)(b)(ii) and (iii), do not apply or weigh in favour of the visa application not being refused.
(c)Insofar as there may be conduct that may form a basis for a finding that the Applicant does not pass an aspect of the character test,[12] the Applicant refers to Annex A to Direction 90 and quotes paras 5(3) and 5(4). The paragraphs quoted by the Applicant, however, relate to consideration of good character on account of past and present criminal or general conduct under sub-ss 501(6)(c)(i) and (ii), not a failure of the character test under s 501(6)(ba) of the Act which is the relevant consideration in the present case. Accordingly, it is not clear how the passages quoted by the Applicant are relevant. As set out above, the Applicant fails the character test under s 501(6)(ba) and he concedes that to be the case.
[12] Direction 90 para 8.1.1(1)(b)(iii).
I also note that para 5.2(2) of section 2 of Annex A to Direction 90, under the heading “Past and present conduct”, provides:
The following factors may also be considered in determining whether a person is not of good character:
a) Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
…
iii. involvement in war crimes or crimes against humanity.
(d)The Applicant’s suspected involvement in activities that supported the initiatives of JITEM was serious because those activities “resulted in death and torture”. The Tribunal’s decision dated 19 May 2017 recognised that there was no evidence that the information provided by the Applicant resulted directly or indirectly in an incident.
(e)Other than his activities between 1993 and 1996 there is no evidence that the Applicant has been involved in conduct which would cause him to be considered not of good character. Although it extended over a three-year period from 1993 to 1996 it was a “one-off” situation and there is no trend of increasing seriousness.
(f)The Applicant’s conduct since 1996 has been exemplary, there is no evidence of any continued association with Jandarma, JITEM or Ergenekon since 1997.
(g)While the Applicant has been unlawfully in Australia since approximately December 2018, he lodged the present application and the previous application in December 2019 in order to regularise his visa status. There is no evidence that he has worked in the absence of work rights.
(h)The evidence considered by the RRT and the Tribunal in the previous applications was provided by the Applicant. He disclosed his activities to the Department and to the Tribunal although some “finer details” of the behaviour were misinterpreted at various stages.
(i)The only relevant conduct is 25 years ago. While the nature of the Applicant’s conduct is “very serious”, it is outweighed by his nil risk of engaging in similar conduct, Australia’s non-refoulement obligations and the prospect of the Applicant being indefinitely detained and his positive contributions over 12 years.
The Minister’s SFIC made the following contentions in respect of this consideration:
(a)It is not disputed that JITEM committed crimes against humanity by torturing and murdering Kurdish people perceived to be members of, or associated with, the PKK, including in the town of Cizre.
(b)While it is not alleged that the Applicant personally committed or took part in, or directly assisted with any acts of torture or murder by JITEM, in respect of the Applicant’s art 1F proceedings, the Tribunal found that the Applicant shared a common purpose with JITEM and was complicit through his work as an informant for them. In this respect:
(i)The Applicant collected information that specifically targeted PKK members, a group he viewed as an outlaw terrorist group.
(ii)The Applicant continued to work as an informant for JITEM even after becoming aware that people associated with PKK were dying at the hands of JITEM.
(iii)The Applicant continued this work for approximately four years, even though he knew that JITEM regularly engaged in the torture and murder of PKK members.
(iv)The Applicant’s reason for continuing to work for Jandarma was financially motivated and not for reasons of duress. There was no requirement for him to continue to work for Jandarma for as long as he did.
(v)The Applicant has admitted that he was personally aware of activities which clearly fall under the definition of crimes against humanity. He therefore undertook his duties with full knowledge of the abuses which JITEM were perpetuating.
(vi)The Tribunal has previously made strong findings (in the 19 May 2017 decision) that the Applicant’s activities as an informer for JITEM constituted complicity in crimes against humanity, that the Applicant shared a common purpose with JITEM and that he did not engage in this conduct under duress. The findings of the Tribunal were not disturbed on appeal.
(vii)A finding that the Applicant is complicit in crimes against humanity is manifestly adverse conduct of the utmost seriousness. Such offences have been described by the Tribunal as being “completely contrary to the underpinning of a civilised society”.[13]
(viii)Given the prior findings of the Tribunal, it can be accepted that the Applicant has not been candid in his dealings with the Department. Furthermore, following his failure to disturb the Tribunal’s prior decision in the Federal Court and High Court, the Applicant remained unlawful for an extended period.
[13] Citing Adekoya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 768 at [107].
Ms Graziotti in closing submissions conceded that “the Applicant’s conduct can only be viewed as extremely serious by the tribunal” and that the Applicant accepted “that this must weigh against setting aside the decision to refuse the applicant’s bridging visa application due to the nature and seriousness of these offences”.[14] I agree with that assessment. The Applicant’s complicity in crimes against humanity, the systematic torture and murder of PKK members and associates is, on any assessment, at the very high end of seriousness.
[14] Transcript at 85.
I take issue with the Applicant’s assertion that he has not been involved in violent crimes. Torture and murder, crimes committed by JITEM, in which the Applicant was complicit, are crimes of extreme violence and, as the Applicant appears to concede, were committed against vulnerable members of the community in question. The extremely serious nature of the crimes in which the Applicant has been complicit weighs heavily in favour of the exercise of the discretion under s 501(1) of the Act not to grant the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly 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.
(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 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.
In assessing the risk that the Applicant poses to the Australian community, I am required to assess the nature of the harm that would be caused should the Applicant engage in further criminal or other serious conduct[15] This consideration also requires an assessment of the likelihood of re-offending.[16] 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.[17]
Nature of harm to individuals or the Australian community (8.1.2(2)(a)) and the likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))
[15] Direction 90 para 8.1.2(2)(a).
[16] Direction 90 para 8.1.2(2)(b); Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124 [42]–[43]. See also Senior Member Dr Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
[17] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
The Applicant made no separate submission in relation to the nature of the harm that would be caused should the Applicant repeat the relevant conduct. Not surprisingly, the Applicant’s arguments in relation to the consideration of the protection of the Australian community were based on what the Applicant argues is the extremely low, if not non-existent, likelihood of the Applicant being in a position, or wanting, to repeat the relevant behaviour. The Applicant’s argument in this regard was summarised by Ms Graziotti in closing as follows:
In terms of the applicant’s risk to the Australian community, there’s no evidence before the tribunal that his actions or anything coming remotely close in nature can be repeated. This conduct occurred a quarter of a century ago.
…
… his involvement with the Jandarma was only possible due to his position within the Turkish government. Basically, his employment as a public servant, the political circumstances at the time, the country he was in, his youth, and his citizenship status.[18]
… there’s no evidence before the tribunal that supports a finding that the applicant poses any tangible or intangible, direct or indirect risk to the Australian community if the application is not refused under s 501. Whatever the applicant’s attitudes towards his conduct are found to be by the tribunal, he simply cannot repeat them. He was also allowed to remain in the Australian community for 13 years. If the department had considered him to pose such a risk to the Australian community, they could have cancelled his visa when he was holding a bridging [visa] E, and they could have taken him into detention while he didn’t hold a visa, yet they chose not to until August 2022.[19]
[18] Transcript at 85–6.
[19] Transcript at 86.
The Applicant made the following submissions in his SFIC under the heading “Risk of committing offences or other serious conduct in Australia”:
(a)The Applicant has lived in Australia for 12 years and seven months and has not been charged with or convicted of any offence, there is no evidence of any criminal or other behaviour while he has been in Australia that could cause any concerns about his character.
(b)For the Applicant to be engaged in similar conduct to that which he engaged in between 1993 and 1996, a government organisation would need to be engaged in a reign of terror.[20]
(c)The Applicant has no work rights in Australia and cannot be employed in any Australian government position. There is no evidence that regularising the Applicant’s visa status would increase the risk of his engaging in similar conduct.
(d)The Applicant has no capacity or desire to engage in such conduct in Australia or even in Turkey if he were to be returned.
(e)The nature of the Applicant’s conduct is such that it cannot be repeated.
(f)The Applicant felt unhappy in his position once he realised what was being done, became depressed and eventually resigned from his position with only four months of his five-year military service remaining to be completed.
(g)The Applicant is remorseful for his role with JITEM and has been haunted since, resulting in a diagnosis of “a general anxiety disorder perpetuated by a chronic post traumatic distress disorder (PTSD) and underlying depression”.[21]
(h)The Applicant is not averse to seeking assistance for his diagnosed mental health conditions.
(i)The Applicant has provided over 100 pages of character references from members of the Australian community.
(j)The Applicant has no current association with JITEM which ended 25 years ago, nor does he have a current association with the Turkish government.
(k)While the Applicant has spent time in Australia without a visa, the only periods during which he did not have an active visa application on foot were December 2018 to December 2019 and December 2020 to 13 January 2021.
[20] Citing the Tribunal’s decision of 19 May 2017 at [163]; see G-documents 441.
[21] Citing the opinion of Dr Susan Lutton, G-documents 559.

A matter raised by the Applicant at the hearing which could be relevant to the consideration of the protection of the Australian community is that, if the decision under review were to be set aside, it does not automatically follow that the Applicant would be granted a visa. If I were to find in favour of the Applicant, the Applicant would still need to satisfy the requirements for the issue of a visa. The Applicant further argues that, even if that were to happen, because the visa in question is only a bridging visa, it can easily be cancelled. In opening Ms Graziotti described the relevant nature of such a visa as follows:
So it’s very easy for the Department. They have a lot of control over what they can do with a bridging visa holder. They can grant it for one day, for example, and then the person becomes unlawful under one day. There’s a lot of liberty in the Department.[22]
and in closing:
He will further be holding an extremely fragile visa, one which is subject to prescribed grounds of cancellation under section 116 of the Act, and regulation 2.43 of the Migration Regulations 1994, as well as its own direction which is direction 63 for cancelling bridging visas E. Should he even be charged with an offence or deemed to pose any risk whatsoever to any person or individual or group in the Australian community, his visa can be cancelled under section 116 without the delays, processes, protections, et cetera, of the 501 framework.[23]
[22] Transcript at 13.
[23] Transcript at 86.
The arguments raised by Ms Graziotti covered in the preceding paragraphs are relevant to para 8.1.2(2)(c) (see [40] above).
The Minister made no separate, identifiable submission in relation to the nature of the harm should the Applicant engage in the relevant serious conduct. Like the Applicant, the Minister, in effect, addressed the issue of the nature of the harm in the same assessment as the likelihood of the Applicant engaging in similar conduct. The essence of the Minister’s position, as stated in para 35 of the Minister’s SFIC, is that “[i]t is manifestly clear that this is a matter where the conduct, if repeated, is so serious that any risk is unacceptable.[24]
[24] Citing Direction 90 para 8.1.2(1) and Adekoya at [93].
In his SFIC, the Minister made the following submissions under the heading “The risk should further offences be committed”:
(a)In response to the Applicant’s contention that there is no risk of the Applicant engaging in the relevant conduct, the Minster referred to the following passages from Adekoya:
90. … It is difficult to ascertain what the likelihood of Mr Adekoya re-offending is, but the reasonable suspicion of the Tribunal that he was actively involved in a very violent organisation that carried out atrocities against civilians weighs against him in this assessment.
91. … While the particular circumstances may not be likely to present in Australia, the fact that the Visa Applicant is reasonably suspected of carrying out such an atrocity, and had then given several conflicting stories to Department officers about his conduct and history, inclines the Tribunal to the view that there is a risk of criminal or serious misconduct, and, taking all the information into account, it is a real risk.
(b)The Tribunal should not reach a conclusion that there is no risk of the Applicant engaging in adverse conduct where:
(i)the Applicant willingly was complicit in crimes against humanity over an extended period;
(ii)he has not been truthful with the Department or the Tribunal about his involvement in those crimes;
(iii)even now he denies complicity; and
(iv)he remained unlawfully in the community.
In opening, Mr Gerrard for the Minister made the following submission on this consideration:
So the applicant is putting to you that there’s no risk of the applicant engaging in similar conduct, and I think that requires a little bit of unpacking. Certainly, as I said, the capacity to engage in crimes against humanity in Australia is, thankfully, minuscule. But that, I’m saying, should not derogate from the weight placed upon this consideration. The fact that an applicant may find it difficult to re-engage conduct, or similar behaviour, is not of itself an answer, and there’s more to it in this matter. Firstly, we would say the tribunal should look at the protracted period that the applicant engaged in this period. The applicant will say it happened a long time ago; we say, “Yes, but it happened over a three or four-year period,” and it happened where he informed on persons who he knew would be likely to be exposed to horrendous treatment - murder, torture, all sorts of the matters discussed in the country information - and as I said, the act of informing is not in and of itself limited to state-sanctioned criminality.
… the applicant showed a preparation, over a sustained period of time - not under duress and for financial reward or for reward for his own viewpoint - to engage in behaviour where he would inform upon other people, and those people, he knew, would be tortured or murdered. That’s the gravity of the findings of the tribunal. That does not preclude that the applicant may not, in similar circumstances, engage in conduct that he would know would lead to serious consequences for other people. He acted as an informant, knowing that it would have consequences. That isn’t limited to the minutiae, I suppose, of JITEM and Jandama, and the PKK. It is a course of conduct that could be repeated in other endeavours. Unlikely; we would have to accept that. But zero? No, I don’t think that that is a reasonable and rational finding. And that falls into the point made before, that clearly, crimes against humanity and that sort of conduct, even if you limited it and walked it back to informing recklessly to how this might impact upon other people’s life and wellbeing, we would say that clearly falls into the category of conduct so serious that no risk, however small, is acceptable. And I don’t think that’s controversial, but if there’s any submission that the Australian community doesn’t deserve protection from even the remote risk of crime against humanity.[25]
[25] Transcript at 23–4.
In opening Mr Gerrard also referred to the Applicant’s continued refusal to accept culpability for his involvement with JITEM and his preparedness to “re-write his history, or his version of events”, echoing Deputy President Dr Kendall’s finding at [156] of the 19 May 2017 decision quoted by Barker J in WRWF 1 at [38] as follows:
… this later evidence represents little more than an attempt by MRWF to re-write a history that served him well for the purposes of his protection visa application but which is clearly "problematic" for the purposes of any Article 1F Refugees Convention analysis.
Mr Gerrard submitted:
… the applicant’s continued refusal to accept culpability, and indeed, his willingness to revisit - and in the words of the tribunal, rewrite - his history, or his version of events, is indicative of a lack of remorse. And that is usually found by this tribunal to be an integer of risk. For obvious reasons: if you don’t think that what you did was actually wrong, how can anyone be convinced that you won’t engage in similar conduct again?
…
… the applicant seeks to portray his time in this country as blemish-free, that is not strictly the case. He was dishonest in his changing narrative; I spoke about the tribunal finding that he rewrote his history when he appeared before the tribunal on the last occasion, and he was unlawful for a sustained period. That may not elevate the needle of risk substantially, but what it does do is stand as a counterpoint to the narrative put forward that he has done no wrong whilst in the community; he has remained, knowledgeably, unlawfully, within the community.[26]
[26] Transcript at 24.
Insofar as Direction 90, in particular para 8.1.2(2)(a), requires me to make an assessment of the harm that would be caused if the Applicant were to engage in the serious conduct that he has in the past, then the harm is obviously of the most severe kind. That assessment is primarily based on the harm to individuals or the Australian community that would be caused by the Applicant engaging in, or being complicit in, crimes against humanity. While neither sub-para (2)(a) nor sub-para (2)(b) expressly states that the “further criminal or other serious conduct” to which the decision-maker is to have regard is criminal or other conduct of the type that the non-citizen has engaged in in the past, that is the only sensible way to read those provisions. That is certainly the basis on which other Tribunals and Courts have read those provisions,[27] and it is the basis on which both parties made their submissions in the present case.
[27] See for example Adekoya at [56]–[61].
That is not to say, however, that that assessment, both as to the nature of the harm that would be caused or the likelihood of the Applicant engaging in harmful conduct, is to be limited to crimes against humanity. I agree with the Minister’s contention that it is not a dispositive answer to this consideration to say that the risk of the Applicant committing crimes against humanity in Australia is as good as zero, therefore this consideration has, in effect, no application. The relevant serious conduct to be looked at for the purposes of this consideration is the Applicant’s preparedness to act in his interest in full knowledge of the catastrophic consequences to others in the community. While the circumstances in which the Applicant exhibited that behaviour in the past, in another country, are extremely unlikely to occur in Australia, that does not equate to a conclusion that the Applicant would not act with disregard for members of the community as he did in the past if relevant circumstances arose.
I do, however, accept that the risk of the Applicant engaging in criminal or other serious conduct as he did in the past is low. His complicity in crimes against humanity was largely a product of the highly unusual, if not unique, circumstances in which he found himself in Turkey over 25 years ago. The Applicant has lived, offence-free, in the Australian community for over 12 years. While he has for limited periods been unlawfully in the community, I accept that during these periods the Applicant was taking steps to address his visa status.
I am, however, concerned by the Applicant’s reluctance to accept responsibility for his actions 25 years ago. While he claims that he is remorseful and accepts responsibility for what he did, for the choices that he made, his conduct does not reflect full acceptance of responsibility. As he apparently did before the Tribunal in 2017, in the hearing of this application the Applicant sought to resile from his previous statements and to “re-write his history,” as Deputy President Dr Kendall put it (see [49] above). An example of this was the claim by the Applicant in cross-examination that he had stopped providing information on PKK members and associates from 1993 when he became aware that JITEM was torturing and murdering PKK members. Counsel for the Minister took the Applicant to various documents, including statements made by the Applicant submitted at previous hearings which contradicted that claim. The following exchange occurred:
MR GERRARD:         Now, in the fifth paragraph it says:
Towards the end of 1992 I was approached by a person from Jandarma to collect information about the PKK.
In the next paragraph it says:
I was also asked to go to Northern Iraq to gather information about PKK. Cizre was close to the Iraqi border. The PKK would often do hit and run campaigns from inside Northern Iraq. I would be sent to Northern Iraq about every four to six months to check out information or obtain information that Jandarma had received. The last time I went to Northern Iraq was around October 1996.
Yes. That’s all right? That’s all correct?
APPLICANT:              Yes.
…
MR GERRARD:         So, you were doing this between 1992 and1996 about every   four to six months? Yes or no, RYTV?
APPLICANT:              Huh?
MR GERRARD:         Yes or no, RYTV?
APPLICANT:              Altogether maybe four or five times.
MR GERRARD:         Next sentence, or next paragraph:
The person from Jandarma told me my official role would continue to be that of a clerk at the conscription office but to report to Jandarma every fortnight or so if I had any information.
APPLICANT:              Yes
MR GERRARD:
In April 1993 there was a change of commander within Jandarma. Jamahl Tamazos took command. This is when the atrocities started. It was common knowledge that the Jandarma were torturing people in the basement downstairs in Khamil Attad’s residence.[28]
[28] Transcript at 68–9.
From Deputy President Dr Kendall’s reasons for decision, it appears that the Applicant sought in those proceedings to resile from his statement that he continued working for Jandarma, gathering information on regular trips to Northern Iraq up to October 1996. The Applicant was taken to Deputy President Dr Kendall’s finding in that regard:
MR GERRARD: Now about four or five lines down it says,
The tribunal does not accept the applicant’s assertion that the information contained is unreliable or inaccurate or poorly prepared. Case for Refugees is arguably the most respected refugee legal advocacy team in Australia.
And it goes on. He says,
To suggest that this group of committed advocates did not listen to the applicant, properly explain to him what was being done, or adequately convey his words is simply not credible in the circumstances of this case. The applicant was given ample opportunity to raise any concerns he might have had in relation to the work done for him by this group and others when appearing before the delegate in 2011, and the RRT in 2012. He did not do so until he appeared before this tribunal in 2015. It is simply not credible that submissions would have been made in at least 2012 before the RRT without at least some suggestion that the applicant’s evidence was unreliable. The applicant was content to have that evidence used by the RRT and indeed that evidence resulted in the RRT finding that he was in need of protection from JITEM. As discussed below the tribunal does not accept that the applicant’s evidence post-2014 constitutes a clarification. Rather it represents an attempt to almost completely resile from and rewrite the evidence that he successfully used for a protection visa but which now weighs against him for the purposes of an article 1F refugees convention inquiry.
So, RYTV, what you earlier said about the statement from Case for Refugees being wrong, that was rejected by the tribunal. And that evidence said that you were doing this between 1992 and October 1996, goes to Northern Iraq, gathering information, giving it to Jandarma. And you knew, RYTV, in April 1993 that that information for going to JITEM and that JITEM were using that information and they were torturing and murdering people and you continued to work - -[29]
[29] Transcript at 72–3.
In response to the above, the Applicant again asserted that there had been an error in translation of his statement. Like Deputy President Dr Kendall, I do not accept that explanation. The Applicant’s repeated claims that he is remorseful for his role with JITEM and has been haunted since, resulting in a diagnosis of “a general anxiety disorder perpetuated by a chronic PTSD and underlying depression” (see [43(g)] above) is inconsistent with his current claim that he stopped providing relevant information to Jandarma (to be passed to JITEM) in 1993. Like Deputy President Dr Kendall, I accept the Applicant’s earlier detailed statement, prepared with the assistance of experienced and reputable advocates, as being the truth.
In relation to the Applicant’s reference to his not being averse to seeking assistance for his diagnosed mental health conditions and his providing over 100 pages of character references (see [43(h)] and [43(i)] above), there is no evidence that the Applicant’s complicity in crimes against humanity between 1993 and 1996 was caused by any mental health conditions, diagnosed or otherwise. Reports were provided by consultant psychiatrist Dr Susan Lutton[30] and by registered psychologist Anubha Adhikari-Parajuli.[31] Neither Dr Lutton nor Ms Adhikari-Parajuli suggested in their reports that the Applicant’s conduct between 1993 and 1996 was caused by any mental health condition. The three reports address the Applicant’s current mental condition and do not purport to address the cause of the Applicant’s conduct between 1993 and 1996. It is difficult to see how the reports are relevant to the issue of the likelihood of the Applicant engaging in further serious conduct of the type in which he engaged in the relevant period.
[30] G-documents 559–60 (18 December 2019); G-documents 552–4 (28 February 2021).
[31] G-documents 557–8 (26 February 2021).
I also note that, while the three reports refer to the Applicant suffering from various mental health conditions, including PTSD, none of the reports specifically identified the trauma which gave rise to the PTSD. The earliest of the reports, that of Dr Lutton dated 18 December 2019, relevantly opined:
His presentation is entirely consistent with a diagnosis of a generalised anxiety disorder perpetuated by a chronic post traumatic stress disorder and underlying depression in a highly vulnerable man. His background history in Turkey was confirmative of a significant trauma, persecution and fear to support the diagnosis and its chronicity.[32]
[32] G-documents 559.
Dr Lutton does not describe the “background history in Turkey” given by the Applicant, however, the language used by Dr Lutton, in particular the phrase “persecution and fear”, is more suggestive of a fear on the Applicant’s part of what would happen to him rather than, as claimed by the Applicant, his being remorseful for his role with JITEM and being haunted since (see [43(g)] above).
In her report of 26 February 2021, Ms Adhikari-Parajuli made the following observations:
[The Applicant] was first referred on 26^th May 2011 by Ruth Saxon from Red Cross. Reasons for referral included witnessing torture and experiencing trauma, sadness, fearfulness, nightmares and social isolation.
…
… [The Applicant] discussed his work experience in the pharmacy and furniture business very proudly. However, he expressed regret in moving to a job within a government department due to the increasing complexity and risk that he reports resulted from this job.[33]
[33] G-documents 557.
As with the reports by Dr Lutton, Ms Adhikari-Parajuli made no reference to the Applicant’s mental health conditions, including PTSD, being caused by his being haunted by what he did with JITEM or Jandarma or being remorseful for the consequences of his actions. Ms Adhikari-Parajuli refers to the Applicant as “witnessing torture” rather than his being complicit in torture.
Similarly, none of the many statements from members of the community provided by the Applicant[34] refers to the Applicant having been complicit in the torture and murder carried out by JITEM. The statements as to the Applicant’s character provided by members of the community speak to what the authors have observed of the Applicant in the Australian community. Whether the authors were aware of the Applicant’s involvement with JITEM and that organisation’s activities, is unknown, but the weight that can be given to those statements is diminished by their failure to address the issue of concern with the Applicant’s character, namely, his complicity in crimes against humanity.
[34] G-documents 550–681.
This first primary consideration, protection of the Australian community, requires the decision-maker to consider the nature and seriousness of the relevant conduct and the risk of the non-citizen engaging in that or other serious conduct. While I accept that the risk of the Applicant engaging in relevant serious conduct is low, and that the visa that he seeks is temporary and easily subject to cancellation, the extremely serious (on the Applicant’s own admission; see [38] above) nature of the conduct means that this consideration must weigh in favour of the exercise of the discretion under s 501(1) not to grant the visa. Because of the extremely serious nature of the conduct, and notwithstanding the low risk of recurrence of the behaviour, moderate weight should be given to this first primary consideration.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)

Both parties were of the view that his consideration is not relevant in the present case. I agree.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Again, both parties were of the view that his consideration is not relevant in the present case and, again, I agree.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly 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 … 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:
…
(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;
…
(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
…
(3) 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.
(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.
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.[35] The principles set out in para 5.2 of Direction 90 as set out in [21] above are also relevant to this consideration.
[35] Direction 90 para 8.4(4).
In FYBR v Minister for Home Affairs,[36] the Full Court considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65)[37] (a predecessor to Directions 79 and 90: see [19] above). The relevant provisions of Direction 90 contain generally similar wording to the corresponding provisions in Direction 65.
[36] [2019] FCAFC 185; (2019) 272 FCR 454.
[37] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38] at [156], I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[38] [2020] AATA 3953,
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In that case Justice Charlesworth observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa.
I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) Direction 90 (see [66] above), which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f) of Direction 90.
The Applicant contends[39] that:
(a)The Applicant has obeyed Australian laws while in Australia in line with the expectations of the Australian community and he has not engaged in serious conduct in breach of the community’s expectations, and that there is no unacceptable risk that he will engage in serious conduct.
(b)In the 19 May 2017 decision of Deputy President Dr Kendall, the Tribunal found that there were serious reasons for considering that the Applicant was guilty of crimes against humanity. Therefore, para 8.4(2)(e) Direction 90 applies, and the Applicant accepts that this could weigh against the grant of a visa.
(c)While the decision-maker is not to independently assess the community’s expectations, the Tribunal should have regard to the evidence showing clear community support for the Applicant remaining in Australia.
(d)Further, given that it costs Australian taxpayers approximately $362,000 per year to keep a person in immigration detention compared to $4,429 for them to live in the community on a Bridging visa the expectation of the Australian community would be that immigration detention is a last resort and reserved to those who pose an unacceptable risk to the community.
[39] Applicant’s SFIC paras 55–8.
The Minister contends that:
(a)The effect of Direction 90 and FYBR is that it is deemed that the Australian community’s expectation is that the Applicant not be granted a visa. The Applicant’s contentions are incompatible with the proper application of this expectation.
(b)The inherent nature of the Applicant’s conduct is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory visa cancellation. The complicity in crimes against humanity expressly falls within this category and the community’s strong expectation, even if the non-citizen does not pose a measurable risk of causing physical harm.
(c)The Tribunal should reject the Applicant’s contention that the speculated cost of detention is such that the Australian community would not favour the refusal of the visa. Such a contention runs contrary to the terms of Direction 90, the clear ratio of FYBR and the statutory scheme.
(d)The primary consideration of the expectations of the Australian community also weighs strongly in favour of exercising the discretion to refuse the visa.
As set out at [68]–[72] above, the effect of Direction 90 and the Full Court judgment in FYBR is that this consideration weighs against the grant of the visa. The matter for determination is the weight to be given to it. The contentions put by the Applicant set out in [74(c)] and [74(d)] above are inconsistent with the application of the “norm”. Further, the contention put in [74(c)] is contrary to the direction in para 8.4(4) of Direction 90 that decision-makers should proceed on the basis of the Government’s views as articulated, without independently assessing the community’s expectations in the particular case. What the Applicant is suggesting is that I, in effect, assess “the community’s expectations in the particular case”, based on the views of the individuals who have provided statements and letters of support to the effect that they want the Applicant to be allowed to remain in Australia. Not only is that in breach of the prohibition against such a course in para 8.4(4) of Direction 90, but it equates, or at least conflates, the views of those individuals with the expectation of the community as a whole. Even if it were permissible to engage in such an exercise, those individuals’ views are clearly based on their association with the Applicant and are therefore not representative of the expectation of the community as a whole, certainly not as articulated by para 8.4 of Direction 90.
I do not accept the Applicant’s argument that the expectations of the Australian public would be determined, or even influenced, by commercial considerations such as the cost of keeping a person in detention compared to granting them a visa and them being released into the community. Such a consideration does not arise from the language or spirit of Direction 90 and, in any event, invites the decision-maker to independently assess the community’s expectations contrary to the direction against such a course in para 8.4(4).
As I noted at [67] above, the principles enunciated in para 5.2 should be considered in determining the appropriate weight to be afforded to this primary consideration. Paragraph 5.2(3) of Direction 90 provides that the community expects the Australian Government to refuse entry to non-citizens if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns, and that this expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (see [21] above). The circumstances envisaged in that paragraph apply to the present case.
Paragraph 5.2(5) of Direction 90 provides that the inherent nature of certain conduct, including conduct mentioned in para 8.4(2) of Direction 90 (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 measurable risk of causing physical harm to the Australian community. Paragraph 8.4(2)(e) of Direction 90 identifies crimes of serious international concern including crimes against humanity as conduct coming within this consideration. The expectation of the Australian community is that where a person has engaged in such conduct, they should not be granted a visa.
The application of the “norm” under Direction 90, as guided by the Full Court in FYBR, means that this consideration weighs in favour of the exercise of the discretion under s 501(1) of the Act not to grant the visa. Because of the nature of the conduct, complicity in the commission of crimes against humanity, this consideration weighs heavily in favour of the exercise of the discretion not to grant the visa notwithstanding the low risk of the Applicant engaging in that conduct in the future.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), … 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 (para 9.1)
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.
…
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
In relation to the reference to s 197C of the Act in para 9.1(2) as quoted above, I note that that the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) commenced on 25 May 2021. That Act made amendments to the Act including the introduction of s 197C(3) and a new s 36A relating to “protection findings” in the context of removal. Under the newly enacted s 197C(3) of the Act, an unlawful non-citizen will not be removed to a country if they have made a valid application for a protection visa that has been finally determined, and in the course of considering that application a “protection finding” was made. A “protection finding” includes, but is not limited to, a finding that a person is a refugee[40] or is owed complementary protection.[41]
[40] The Act s 36(2)(a).
[41] The Act s 36(2)(aa).

In the present case, by operation of ss 501E and 48A of the Act, the Applicant cannot make an application for a protection visa. As noted above, however, by its decision in June 2012, RRT remitted the application for a protection visa for reconsideration with a direction that the Applicant satisfies art 1A(2) of the Refugees Convention on the basis that the Applicant would face persecution in Turkey because of his role as an informer with JITEM, and that he would face serious harm or death from non-state actors for which he would be unable to access state protection.
The Applicant contends that:
(a)A decision to refuse the Applicant the BVE will therefore necessarily result in his removal to a country in respect of which a non-refoulement obligation exists and will constitute a breach of international law.[42]
[42] Applicant’s SFIC para 62.
(b)If Australia honours the non-refoulement obligation the Applicant will be subject to indefinite detention. In that regard the Applicant cites a 2011 report titled ‘Report: Health effects of indefinite detention”[43] which examined the harmful effects of indefinite detention. These include:
(i)severe and chronic anxiety and dread;
(ii)pathological levels of stress which has identified medical consequences
(iii)depression and suicide;
(iv)PTSD; and
(v)enduring personality changes.
(c)The Applicant is significantly at risk due to his already having been diagnosed with serious and chronic mental health issues. The Applicant cites a 2005 report of Amnesty International[44] and a 2005 transcript of interview with the Royal Australian and New Zealand College of Psychiatrists,[45] as well as a 2021 article in the Guardian Australia,[46] and points to a paper published in the Medical Journal of Australia,[47] which looked at the health, including the mental health, of detainees.[48]
(d)While the Applicant can make further requests for Ministerial intervention, if I affirm the decision under review, any such request would be finalised without referral as he will have been refused a visa on character grounds.
[43] Physicians for Human Rights, Report: Health effects of indefinite detention (Report, 21 June 2011).
[44] Amnesty International, The impact of indefinite detention: the case to change Australia’s mandatory detention regime (Report, 2005).
[45] Interview with the Royal Australian and New Zealand College of Psychiatrists (Eleanor Hall, 25 May 2005).
[46] Ben Doherty, ‘Indefinite detention of refugees is unlawful under international law, but Australia has quietly made it legal’, The Guardian (online, 16 May 2021) < Janette P Green and Kathy Eagar, ‘The health of people in Australian immigration detention centres’ (2010) 192(2) The Medical Journal of Australia 65–70.
[48] I note that some of the links cited by the Applicant were broken or were duplicates.

The Minster’s SFIC made the following contentions:

(a)The Applicant is not a refugee within the terms of the Refugees Convention as he is expressly excluded under arts 1F(a) and 1F(c) of that Convention.
(b)The Minister accepts that a ‘protection finding’ has been made in respect of the Applicant in circumstances where the Applicant would have satisfied the criterion in s 36(2)(aa) except that s 36(2C) would apply.[49]
[49] Citing the Act s 197C(5)(f).
(c)None of the paragraphs of s 197C(3)(c) of the Act is satisfied or likely to be satisfied in the foreseeable future.
(d)The Minister accepts that, at this point in time, the Applicant is unable to be returned to Turkey and, if his visa is refused under s 501(1), he will remain in Australia, detained under s 189 of the Act until one of the following events occurs:
(i)the Minister exercises his personal discretion under s 195A of the Act to grant the Applicant a visa;
(ii)the Minister exercises his personal discretion under s 197AB of the Act to make a residence determination in respect of the Applicant;
(iii)the Minister makes a decision under s 197D that the Applicant no longer engages protection obligations;
(iv)the Applicant is removed to a third country; and/or
(v)the Applicant requests to be returned to Turkey.

(e)The Minister accepts that there is no ‘chronologically fixed endpoint’ to the Applicant’s detention (such that it might be described as ‘indefinite’). As a result, the Applicant may be detained for a prolonged period. It is open to the Tribunal to give weight to this matter, and any impact that such detention may have on the Applicant’s mental health.

The medical evidence in the reports of Dr Lutton and Ms Adhikari-Parajuli (see [57] above) are not disputed. Those reports and a number of the statements and letters of support provided by the Applicant, make it clear that his continued detention will have a significant impact on his mental health and potentially his physical health. I also take note of the reports into the effects of detention referred to by the Applicant (see [85(c)] above). In her report of 18 December 2019, Dr Lutton opined:

As his treating psychiatrist I am writing to express the clinical concern of such detainment. [the Applicant] is only maintaining his current state of mental health by accessing very regular counselling, psychiatric care and a daily involvement in community activities. The latter is an essential state of distraction to his trauma and severe anxiety. Without this involvement he is at risk, especially if in a detained environment, for emotional decompensation, escalation of symptoms and self harm. I consider removal from the community to hold a very real risk for this man and this is being stated not just as an attempt to avoid detainment, but from clinical judgement and clinical concern.[50]
[50] G-documents 560.

I am required to engage with the legal consequences of a decision to exercise the discretion to refuse to grant the Applicant a visa.[51] I note that the amendments to s 197C of the Act now cause the Act to align with the executive policy position as stated in Direction 90. I also noted that the executive policy is consistent with the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)[52] relating to the addition of s 197C into the 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.
[51] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [8]–[10], [17] and Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84]–[88].
[52] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).

In light of the above statements of executive policy and the amendment to s 197C of the Act, I am satisfied that it is highly unlikely that Australia will remove the Applicant as a consequence of a refusal to grant a visa to the country in respect of which the non-refoulement obligation exists. The Minister accepts that there is no ‘chronologically fixed endpoint’ to the Applicant’s detention (such that it might be described as ‘indefinite’) and that the Applicant may be detained for a prolonged period (see [87] above). I agree with that assessment.

The practical consequence of affirming the decision to exercise the discretion to not grant the visa under s 501(1) will be that the Applicant will be detained in immigration for an indefinite period. There is also the theoretical possibility, albeit very remote, that a consequence of the refusal of the visa will be the Applicant being returned to Turkey. I accept that in light of the RRT’s findings, if that were to occur the Applicant would face serious harm and even death. The reality is, however, that the highly likely consequence of the visa being refused is that the Applicant will remain in immigration detention for an indefinite period. I accept that, given the Applicant’s diagnosed mental conditions, continued detention for an indefinite period will have a significant adverse impact on his mental, and potentially physical, health. This consideration therefore weighs against the exercise of the discretion not to grant the visa and in my assessment this consideration should be given moderate weight.

Extent of impediments if removed (para 9.2)

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 relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c) of Direction 90, the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of Turkey enjoy.

The Applicant contended as follows:

(a)The Applicant is 55 years old, has lived in Australia for 12 years and has been diagnosed with mental health conditions caused by his experiences in Turkey and his uncertainty as to his future in Australia.
(b)He is unlikely to face language or cultural issues in establishing himself in Turkey.
(c)The Applicant has a real chance of being persecuted if he returned to Turkey.[53]
[53] Applicant’s SFIC paras 70–2.

The Minister:

(a)Accepts that if the Applicant were to be removed to Turkey, he would likely face hardship albeit it is not a country which is wholly unfamiliar to him.
(b)Contends, however, that due to the extant protection finding, s 198 of the Act does not require or authorise his removal (pursuant to s 197C(3) of the Act). Accordingly, there is no present prospect of the Applicant being removed to Turkey, and accordingly the impediments that he may face if removed to Turkey are unlikely to eventuate as a consequence of this decision.

As the Minister points out, consideration of the impediments that the Applicant would be likely to face if he were to be sent back to Turkey is an academic exercise in circumstances where, for the reasons identified by the Minister, the Applicant will not be sent back to Turkey, at least in the foreseeable future. While it may be the case that as things presently stand the Applicant is highly unlikely to be returned to Turkey, I think that there is at least a theoretical possibility that the Applicant could be returned to Turkey at some point and be required to establish and maintain basic living standard. The Applicant concedes that there would not be language and cultural impediments, however, I accept that the Applicant’s mental health issues and the prospect of his being persecuted would be impediments.

While this factor weighs against the exercise of the discretion not to grant the visa, given the very low likelihood of the Applicant being returned to Turkey and being required to establish and maintain basic living standards, only minor weight can be given to this consideration.

Impact on victims (para 9.3)

Neither party considered this to be a relevant consideration. I agree.

Links to the Australian Community (para 9.4)

Paragraph 9.4 of Direction 90 provides:

Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.

Strength, nature and duration of ties to Australia (para 9.4.1)

Paragraph 9.4.1 of Direction 90 is as follows:

(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.
(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 noncitizen 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.

The Applicant contends[54] that:

(a)He has no family members in Australia.
(b)He has not committed any offence in Australia.
(c)He has spent over a decade contributing positively to the Australian community, in particular as a committee member of a Muslim community association from 2011 to 2018. The association is a charity that provides prayer services to people in Perth. In 2018 the Applicant became the president of the association. He helped the association raise over $400,000.
(d)He was also involved in a charity that provided meals to needy. He cooked Turkish food for that organisation.
(e)The numerous statements and letters of support provided by the Applicant attest to the positive contributions that he has made to the community.
(f)The Applicant has also worked on a voluntary basis for St Vincent De Paul including working in a Vinnies shop in a suburb of Perth.
[54] Applicant’s SFIC paras 77–83.

The Minister submitted that:

(a)While the Applicant has been in Australia for over 10 years, he has no family in Australia and has never held a job.
(b)There is evidence that the Applicant has community support via the large volume of support letters provided. However, it is clear that the authors of those support letters are either unaware of the Applicant’s complicity in crimes against humanity, or are of the view that the Applicant’s role was either minimal, unwitting or under compulsion.
(c)The Minister concedes that the strength, nature and duration of ties to Australia should have some weight in favour of exercising the discretion in the Applicant’s favour but clearly not to any significant degree.

As both the Applicant and the Minister noted, the Applicant provided a large number of statements and letters of support from members of the community. These statements and letters supported the Applicant’s claims of having been extensively involved in the various charities to which he referred, in particular the Perth Muslim association referred to in [100(c)] above. I do, however, share the Minister’s concern that none of the statements and letters of support made any reference to the Applicant’s past in Turkey, in particular to his activities as an informer for JITEM and that organisation’s torture and murder of PKK members and associates. As I noted earlier under the consideration of the protection of the Australian community, the weight that can be given to those statements and letters is reduced by the apparent lack of awareness on the part of the authors of the Applicant’s background and his complicity in crimes against humanity.

It is clear, however, that for the purposes of this consideration, links to the Australian community, that the Applicant does have links to the community through the various charitable organisations and that he has positively contributed to the community through those organisations.

The submissions made by the parties and my above observations on those submissions as made, addressed the considerations identified in para 9.4.1(2). Paragraph 9.4.1(1) directs the decision-maker’s attention to the impact of a decision on the Applicant’s immediate family members (of whom there are none) and to the impact of a decision on people who have a right to remain in Australia indefinitely”. In a lot of cases, the authors of the statements of support did identify their status in that regard, but not all. It was, however, only in a few cases that the authors addressed the specific issue identified in para 9.4.1(1), namely the impact on them of the decision to be made by me. In that regard, none of the statements of support were to the effect that they were financially or otherwise dependent on the Applicant. A number of authors did say that if the Applicant were to be deported, they would lose a friend, and I accept that the various charities with which the Applicant has worked would lose a valuable volunteer worker if he were to be deported.

Most of the submissions made by both parties purported to address the considerations identified in para 9.4.1(2) of Direction 90. That paragraph, however, by its opening words applies only “[w]here consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa” (see [99] above). The present case does not fall into either of those categories. Notwithstanding that qualification to the application of para 9.4.1(2), the matters raised by the Applicant and addressed by the Minister are, in my view, relevant in considering whether exercise the discretion under s 501(1) not to grant a visa, noting that the considerations under Direction 90 are not exhaustive of the matters that can be taken into account in making a decision under s 501(1) of the Act.[55]

[55] Direction 90 para 9(1).

I am satisfied that the Applicant has links to the Australian community, primarily through his connection to the several charities with which he has been associated, and through personal friendships, and that this consideration weighs against the exercise of the discretion not to grant the visa. Given the limited nature of the Applicant’s links, in particular the lack of any family links and the absence of any financial or other dependence of a member of the Australian community on the Applicant, only minor weight is to be given to this consideration.

Impact on Australian business interests (para 9.4.2)

Neither party made any submissions on this consideration and I find that it is not relevant to the present case.

THE WEIGHING EXERCISE

Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [23] above).

A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[56] and the Full Court judgment in Minister for Home Affairs v HSKJ.[57]

[56] [2018] FCA 594; (2018) 74 AAR 545.

[57] [2018] FCAFC 217; (2018) 266 FCR 591.

Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[58] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:

The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 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.
(Emphasis omitted.)
[58] [2021] FCA 775.

Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position 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. ...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs in favour of the exercise of the discretion under s 501(1) not to grant the visa and that because of the extremely serious nature of the conduct, and notwithstanding the low risk of recurrence of the behaviour, moderate weight should be given to this first primary consideration.
The second primary consideration, family violence and the third primary consideration, the best interests of minor children in Australia, are not relevant in the present case.
The fourth primary consideration, the expectations of the Australian community, weighs in favour of the exercise of the discretion under s 501(1) of the Act not to grant the visa and because of the nature of the conduct, complicity in the commission of crimes against humanity, this consideration weighs heavily in favour of the exercise of the discretion not to grant the visa.
In relation to the “other considerations” identified in Direction 90, I find that the international non-refoulement obligations consideration weighs against the exercise of the discretion not to grant the visa and that this consideration should be given moderate weight.
I find that the consideration of extent of impediments if removed weighs against the exercise of the discretion not to grant the visa, however, given the very low likelihood of the Applicant being returned to Turkey and being required to establish and maintain basic living standards, only minor weight can be given to this consideration.
I find that the consideration of links to the Australian community weighs against the exercise of the discretion not to grant the visa. Given the limited nature of the Applicant’s links, in particular the lack of any familial links and the absence of any financial or other dependence of a member of the Australian community on the Applicant, only minor weight is to be given to this consideration.
Having weighed the considerations in favour of exercising the discretion under s 501(1) not to grant the visa sought by the Applicant and those against the exercise of that discretion, mindful that, in accordance with para 7(2) of Direction 90, primary considerations should generally be given greater weight than other considerations, I find that the considerations in favour of exercising the discretion not to grant the visa outweigh those against the exercise of the discretion.
DECISION
The decision of the delegate of the Minister dated 19 August 2022 to refuse to grant the Applicant a Bridging E (Class WE) visa under s 501(1) of the Act is affirmed.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 16 November 2022

Date of hearing: 3 November 2022

Counsel for the Applicant: Ms A Graziotti

Solicitors for the Applicant: Estrin Saul Lawyers and Migration Specialists

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	3 November 2022
Counsel for the Applicant:	Ms A Graziotti
Solicitors for the Applicant:	Estrin Saul Lawyers and Migration Specialists
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor