Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80 (1 February 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6967
Re:Muhammad Imran Sadiq
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:1 February 2021
Place:Perth
The Tribunal affirms the decision of the Delegate of the Respondent dated 29 October 2020 to refuse to grant the Applicant a Student (Temporary) (Class TU) visa.
...................[sgd].....................................................
Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – is the Tribunal satisfied that the Applicant passes the character test – whether the Applicant would engage in the conduct identified in s 501(6)(d)(i) – Direction no. 79 – Annex A – application of the character test – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – reviewable decision affirmedLEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 43(1)
Criminal Investigation Act 2006 (WA)
Migration Act 1958 (Cth) – ss 36(2)(a), 36(2)(aa), 189(1), 499, 500(1)(b), 500(6B), 500(6H), 500(6J) 501, 501(1), 501(6), 501(6)(a), 501(6)(b), 501(6)(c), 501(6)(d), 501(6)(d)(i), 501(6)(d)(ii), 501(6)(d)(v), 501(6)(e), 501(6)(h), 501CA, 501F(3), 501G(1)CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Assistant Minister for Immigration and Border Protection and Splendido
BCR16 v Minister for Immigration and Border Protection
BSJ16 v Minister for Immigration and Border Protection
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
CZCV and Minister for Home Affairs [2019] AATA 91
FYBR v Minister for Home Affairs
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)
Hambledon v Minister for Immigration and Border Protection
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
KLLV and the Minister for Immigration and Border Protection
Minister for Home Affairs v Omar
Minister for Immigration and Border Protection v Sabharwal
Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs v CPJ16
Minister for Immigration and Ethnic Affairs v Baker
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
NDFN and the Minister for Immigration and Border Protection
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Omar v Minister for Home Affairs
QKVH and Minister for Home Affairs
Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 888 (20 April 2020)
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border ProtectionSECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth),Direction No. 79 –
Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018) – paras 6.1, 6.1(2), 6.1(4), 6.2, 6.3, 6.3(6), 7(1)(a); Part B 8, 11.1(1), 11.1.1, 11.1.2, 11.1.2(3), 11.1.2(4), 11.2, 11.3(1), 12(1), 12.2(1), 12.3(1), 14.1(1), 14.1(4); Annexure A
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
REASONS FOR DECISION
Member S Burford
1 February 2021
THE APPLICATION
This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) on 29 October 2020 to refuse the Applicant’s application for a Student (Temporary) (Class TU) visa under s 501(1) of the Migration Act 1958 (Cth)
(the Migration Act). The Applicant was notified of the decision by email on 9 November 2020. This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
BACKGROUND
The Applicant is a citizen of Pakistan who arrived in Australia on 13 June 2014 on a
Higher Education Sector (Subclass 573) visa. The Applicant was granted a further student visa in August 2018. That visa ceased on 15 September 2019.[1]
[1] R2, G15, page 75.
On 10 September 2019 the Applicant lodged an application for a Student (Temporary) (Class TU) visa (the Visa).[2] He was granted an associated Bridging A (Class WA) visa
(the bridging visa).[3]
[2] R2, G16.
[3] A1.
The Applicant initially completed a Diploma of Science (Engineering Studies) at Perth Institute of Business and Technology.[4] In July 2015 he commenced a Bachelor of Technology (Civil Engineering) at Edith Cowan University. For a period he transferred to a Bachelor of Computer Science at the same institution but returned to the original degree, ultimately withdrawing in July 2019 due to poor academic performance.[5] The Applicant blamed his poor performance on the death of his friend in a road accident in May 2017.[6]
In September 2019 the Applicant commenced a Diploma of Information Technology Networking at the National Institute of Technology which was awarded in October 2020.[7] On 21 September 2020 the Applicant commenced studying an Advanced Diploma of Telecommunications Network Engineering at the National Institute of Technology.[8]
He was due to complete this course in September 2021 however his enrolment was cancelled in November 2020 as he no longer held a visa authorising him to study.[9]
[4] R2, G16, page 86; G21 pages 108-109.
[5] A1; R2, G21, pages 110-112.
[6] R2, G21, page 147.
[7] R2, G19, page 102; A3, pages 14-15.
[8] A6.
[9] A3, page 17
Since arriving in Australia and prior to being taken into immigration detention, the Applicant has lived with one of his brothers, his sister-in-law and two nieces who were born in June 2017 and December 2019.[10] The Applicant’s brother and nieces are Australian citizens.[11]
[10] A1.
[11] A3, page 2; R2, G10, page 52.
The Applicant’s father is deceased. His mother and several siblings live in Pakistan. Several other siblings live abroad including Saudi Arabia, Dubai and Sweden.[12] He has made a number of return visits to Pakistan since he has been in Australia.[13]
[12] R2, G10, G23.
[13] R2, G15, page 75.
In November 2018 the Applicant and his brother commenced a business buying and reselling second hand personal electronic devices.[14] The business was registered in his brother’s name and his brother acted as an accountant for the business, lodging BAS and tax statements for the Applicant and the business.[15]
[14] A1.
[15] A3, page 2.
On 31 October 2019 the Applicant plead guilty to and was convicted of five counts of possession of stolen or unlawfully obtained property. He was sentenced on the same date to seven months imprisonment on one count and one months’ imprisonment, to be served cumulatively, on the other counts. The Applicant’s prison sentence was suspended for
12 months.[16]
[16] R2, G5, page 26; R3, page 15.
On 21 November 2019 the Applicant provided additional material in support of the Visa application including an ‘AFP Police Check’. This material was accompanied by submissions from the Applicant’s then representative regarding the offences detailed in the Police Check and submitting that, notwithstanding the offences, the Applicant satisfied the character test. Further information including a ‘Character Details Statement’,
Pakistani Police Character Certificate and Form 80 ‘Personal Particulars for assessment including character assessment’ was provided on 2 January 2020.[17]
[17] R2, G23, pages 158-178.
On 14 May 2020 the Department of Immigration and Border Protection (the Department) wrote to the Applicant informing him of the intention to refuse the application for the Visa on character grounds under s 501(1) of the Migration Act.[18]
[18] R2, G14, pages 70-73.
The Applicant responded in writing on 15 June 2020[19] with subsequent submissions in response to the Department’s notification and subsequent request for comment on particular information before the Delegate.[20]
[19] R2, G8- G13, pages 36 – 69.
[20] R2, G17-G20, pages 97-103.
On 29 October 2020 the Applicant’s application for the Visa was refused by the Delegate under s 501(1) of the Migration Act. As a result of this decision his bridging visa was cancelled by operation of law[21] and the Applicant entered immigration detention on
13 November 2020.[22] The Applicant was notified of the decision to refuse the Visa by email to his then authorised representative on 9 November 2020.
[21] Migration Act 1958 (Cth), s 501F(3) (Migration Act).
[22] Pursuant to s 189(1) of the Migration Act.
According to the Statement of Reasons for refusal[23] the Delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(d)(i) of the Migration Act.
The Delegate found that if the Applicant remained in Australia there was a risk he would engage in criminal conduct. Having concluded the Applicant did not pass the character test, the Delegate found that the Applicant represented an unacceptable risk of harm to the Australian community and that there were no sufficiently countervailing considerations to warrant the Australian community accepting any level of risk. On the basis of these considerations, the Delegate decided to exercise their discretion to refuse the Visa.
[23] R2, G3, pages 16-20.
On 9 November 2020 the Applicant filed an application for review of the Reviewable Decision with the Tribunal.[24]
[24] R2, G2.
It was common ground between the parties that the Applicant’s 84-day timeframe for the review of the refusal of the visa ends on 1 February 2021.
THE ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant does not pass the character test on the basis of 501(6)(d)(i) of the Migration Act; and
(b)if not, whether the Tribunal should exercise the discretion under s 501(1) of the Migration Act to refuse to grant the Applicant the Visa.
The Applicant seeks to challenge the refusal of his application for the Visa both on the ground that he passes the character test on the basis that there is no risk he will engage in further criminal conduct in Australia and, in the alternative, that the discretion to refuse the Visa should not be exercised in particular having regard to the low risk he would reoffend, the best interests of his nieces and the impact on his family.
The Respondent submits that the Applicant’s conduct is of a type that there is a real risk that if the Applicant were to remain in Australia, he would engage in further criminal conduct. The Respondent submits that the Applicant’s Visa should be refused because he does not pass the character test and the balance of considerations under Direction no. 79 is in favour of the discretion to refuse the Visa being exercised.
If the Applicant satisfies the Tribunal that he satisfies s 501(6)(d)(i), the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under s 501(1) of the Migration Act is not enlivened. However, in such circumstances, the matter would be remitted to the Respondent for further consideration of the criteria for the visa.
That is, to remit the matter for reconsideration with the direction that the Applicant does not fail the character test by virtue of s 501(1)(6)(d)(i) of the Migration Act.
If the Applicant does not satisfy the Tribunal that s 501(6)(d)(i) does not apply to him the discretion in s 501(1) of the Migration Act to refuse to grant the Applicant a visa is enlivened.
The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in s 501(1) of the Migration Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the discretion that the Visa should not be refused under s 501(1).
JURISDICTION
This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decision of a delegate of the Respondent under s 501 of the Migration Act.
As noted above, the Reviewable Decision of 9 November 2020 was communicated to the Applicant by email on the same date.[25] He lodged his application for review on 9 November 2020 and is in the migration zone. He therefore lodged his application for review within the nine-day period after he received the decision in accordance with ss 501G(1) and 500(6B) of the Migration Act.
[25] R2, G3, pages 11-13.
The Tribunal is satisfied that the application was lodged within time and that it has the jurisdiction to review the Reviewable Decision.
PROCEDINGS BEFORE THE TRIBUNAL
Directions hearings
The matter was initially listed for a Directions hearing on 18 November 2020.
Shortly before the directions hearing on 18 November 2020, the Applicant’s then representative, a registered migration agent, Mr Kashif Khan of EVICON Australia, contacted the Tribunal seeking to withdraw as the Applicant’s representative.
On 18 November 2020, the Applicant informed the Tribunal that Mr Khan had ceased to act as his representative and the Applicant was self-represented
A fresh Directions hearing was convened on 20 November 2020. The Applicant attended that Directions hearing by telephone and was self-represented. At that Directions hearing, the Tribunal explained the process to the Applicant and made Directions programming the matter for hearing.
On 14 December 2020, Ms Alice Graziotti of Estrin Saul Lawyers was appointed as the Applicant’s authorised representative. Revised Directions were made on 15 December 2020 as agreed between the parties programming the matter to proceed to hearing on
19 January 2021.The hearing
The hearing commenced on 19 January 2021 in Perth. Closing submissions were heard on 21 January 2021.
The Tribunal notes that due to the COVID-19 pandemic protocols in place at immigration detention facilities, the Applicant appeared by means of electronic communication.
The witnesses appeared via telephone. The Tribunal took steps throughout the hearing process to ensure the proceedings could continue to be conducted fairly to the parties consistent with the Tribunal’s obligations under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[26] The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.[26] Administrative Appeals Tribunal 1975 (Cth) s 2A.
The Applicant was represented by Ms Graziotti from Estrin Saul Lawyers and the Respondent was represented by Mr Alex Chan from Sparke Helmore Lawyers. Ms Graziotti appeared in person. Mr Chan appeared via video conference from Adelaide.
The first day of the hearing was conducted with the assistance of an experienced interpreter who was fluent in the English and Urdu languages. The Tribunal notes the Applicant indicated he did not require the assistance of the interpreter and he was able to participate in the hearing in English without relying on the interpreter. Prior to the hearing the Applicant’s representative indicated the Applicant did not require the assistance of an interpreter. However, the Applicant’s representative had indicated prior to the hearing that the Applicant’s brother, Mr Aefran, had requested an interpreter be present for his evidence. At the hearing Mr Aefran indicated he did not require the assistance of the interpreter and gave evidence in English. Based on their evidence at the hearing and engagement with the Tribunal, the Tribunal considered that both the Applicant and Mr Aefran were proficient in the English language and able to fully participate in the hearing without the assistance of the interpreter. All other witnesses gave evidence in English without issue.
As the assistance of the interpreter was not required on the first day of the hearing,
the second day proceeded without the interpreter present, with the agreement of the parties.MATERIAL BEFORE THE TRIBUNAL
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.[27] The Applicant also called the following witnesses to give evidence in support of his application:
·Dr Phil Watts, clinical psychologist; [28]
·Mr Ali Aefran, the Applicant’s brother;[29]
·Mr Muhammad Sohaib Sadiq, the Applicant’s cousin. [30]
[27] Applicant’s statements at A3, page 5; A5; R2, G8, G10, G18, G23.
[28] Report at A3, pages 50-55.
[29] Statement at A3, page 2; A9; R2, G11, page 59.
[30] Statement at A3, page 28; A10.
Several other witness statements were provided to the Tribunal.[31] The Applicant did not call these witnesses to give evidence. Additional supporting material was also submitted to the Tribunal.[32] Additional material was submitted by the Applicant to the Delegate, including material submitted in support of the application for the Visa.[33]
[31] A3, pages 1, 4, 13, 31, 34, 36, 38, 40, 43;
[32] A3, pages 14, 16, 17, 20, 47, 48, 49; A6; A7; A8; A11; A12; A13; A14; A15; A16; A17; A18; A19.
[33] R2, G12, G13, G19, G20, G21, G23.
The list of documents admitted into evidence is included as ‘Attachment A’ to these Reasons for Decision.
The Tribunal is, of course, aware of the restrictions on the consideration of certain evidence contained in ss 500(6H) and (6J) of the Migration Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing (the two-day rule). However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, the Tribunal has considered the evidence of witnesses provided in response to questions in cross-examination by the Respondent and questions from the Tribunal. No issues regarding the two-day rule were raised in the proceedings.
RELEVANT LAW
Character test
Subsection 501(1) of the Migration Act provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
The character test is defined in section 501(6) of the Migration Act, which provides relevantly in the context of this application for review, that:
(6)For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or …
(Original emphasis.)
In the present case the Delegate’s decision relied on the Applicant failing the character test under s 501(6)(d)(i) of the Migration Act.[34] The Delegate described this as ‘[t]he relevant ground of the character test in this case.[35]
[34] R2, G3, page 18, para 21.
[35] R2, G3, page 16, para 6.
The Applicant’s written submissions addressed s 501(6)(a)-(c) and (e)-(h) of the Migration Act – ‘the character test’. However, the Respondent’s written submissions noted that in accordance with the judgement of the Federal Court in Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16),[36] the grounds upon which the Applicant could be found to fail the character test on review are confined to those under s 501(6)(d)(i) due to the Delegate’s sole reliance on this ground.[37]
In oral submissions the Applicant agreed the Tribunal’s task, with respect to the character test, was limited to considering whether the Applicant failed the character test by virtue ofs 501(6)(d)(i) as found by the Delegate.[36] Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16) at [66]-[70].
[37] R1, page 3 at para 8.
In CPJ16, the delegate had determined an Applicant did not meet the character test by virtue of s 501(6)(d)(i). On review, the Minister sought to include consideration of s 501(6)(c) and the Tribunal refused to expand the issues in the review to include consideration of that ground of the character test. It may have been arguable that other criteria in s 501(6) could have applied, including s 501(6)(c). The Court held the Tribunal did not err in refusing to consider other grounds of s 501(6) because the delegate had eliminated from the issues about which the Applicant needed to satisfy him all criteria in the definition of the character test in s 501(6) other than s 501(6)(d)(i), because, it should be inferred, he had considered that they could not, or did not, arise. He had invited the applicant to satisfy him,
in accordance with the rules of procedural fairness, solely with respect to s 501(6)(d)(i).
That confined the scope of the review under s 43(1) of the AAT Act to the question of whether, first, the applicant had passed the character test in s 501(6)(d)(i) and, secondly,
if they did not, how the Tribunal should exercise its power under s 501(1): [38]And because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under
s 501(1), that ground confined the issues on the review.(Original emphasis.)
[38] CPJ16 at [68].
The Court held that it was open to the Tribunal to have regard to any conduct or circumstances affecting the question under s 501(6)(d)(i) that occurred or came to light after the delegate’s decision and up to and including at the time of its own decision, in considering whether to exercise the discretion to refuse to grant the visa under s 501(1) if he failed the character test in respect of s 501(6)(d)(i). It follows that, where there are no relevant new facts emerging on review, the Tribunal cannot expand the review to consider aspects of the character test that were not the basis for the delegate’s decision.[39]
[39] CPJ16 at [70].
On appeal, the Full Court (Flick, Perry and Thawley JJ) determined it was not appropriate to determine the correctness of the appeal having regard to the particular circumstances of that matter and ‘even though we do not regard the decision of the primary judge to be self-evidently correct.’[40]
[40] Minister for Immigration, Citizenship, Migrant Services and Mutlicultural Affairs v CPJ16 [2020] FCAFC 87 at [28].
As discussed with the parties at the hearing, the Tribunal was concerned with the suggestion that it would be appropriate to make positive findings that the Applicant met all the limbs of s 501(6)(d)(i), that is that he passed the character test, in circumstances where the authorities suggested the Tribunal was restricted to considering the grounds which were the subject of a finding in the Reviewable Decision, in this instance s 501(6)(d)(i) of the Migration Act. While the Tribunal accepts that it is bound by the authorities in CPJ16 in that respect, in circumstances where save from the issue of the Applicant’s cannabis use the Tribunal considers there were not new facts emerging on review of the kind envisaged by his Honour in CPJ16, the Tribunal foreshadowed for the parties that it did not consider it would be in a position to make findings on limbs of the character test which were not before it for consideration. As such, in the event the Tribunal was satisfied the Applicant did not fail the character test on the basis of s501(6)(d)(i) the appropriate order would be to that effect, with the matter remitted to the Department for further consideration of any other relevant criteria. The parties agreed that this would be an appropriate course of action in that event.
If the Tribunal is not satisfied that the Applicant passes the character test under the ground set out in s 501(6)(d)(i) of the Migration Act, the Tribunal may refuse to grant the Visa.
That discretion must be exercised by the Tribunal in accordance with Direction no. 79,[41] which was issued under s 499 of the Migration Act on 20 December 2018 and came into effect on 28 February 2019. Direction no. 79 applies to visa refusal and cancellation under s 501.[41] Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79).
Paragraph 6.1 of Direction no. 79 sets out the objectives of the Migration Act,
with paragraphs 6.1(2) and (4) of Direction no. 79 being particularly relevant to the Reviewable Decision which is currently before the Tribunal:(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test … Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective,
and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test.
Timely decisions are also beneficial to the client in providing certainty about their future.(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under ss 501 and 501CA of the Migration Act, including the Tribunal, 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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in para 6.3 of Direction no. 79, the decision-maker
(in this case, the Tribunal) must take into account the primary and other considerations in Part B of Direction no. 79, with regard to the specific circumstances of the case,in deciding ‘whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;’.[42][42] Paragraph 7(1)(a) of Direction no. 79.
The primary considerations in Part B of Direction no. 79, in deciding whether to refuse the non-citizen’s visa, are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian Community.
The decision-maker must also take into account other considerations insofar as they are relevant to the matter, including, but not limited to international non-refoulement obligations, and the impact of the visa refusal on victims, family members and Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 79 can be found in para 8 of Direction no. 79 which provides:(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Annexure A to Direction no. 79 (Annex A) provides direction on the application of the various grounds of the character test set out in s 501(6) of the Migration Act.
THE APPLICANT’S OFFENDING HISTORY AND CONDUCT
Criminal offences
The National Police Certificate dated 14 November 2019 indicates that the Applicant has been convicted of five counts of Possession of stolen or unlawfully obtained property for which he plead guilty and was convicted on 31 October 2019 (the possession of stolen property offences).[43] He was sentenced to seven months’ imprisonment for one count and one months’ imprisonment for the four remaining counts, totalling 11 months’ imprisonment with an aggregate term of seven months. The Applicant’s term of imprisonment was suspended for one year.
[43] R2, G4, page 21.
There is no evidence before the Tribunal that the Applicant has been convicted of any offence in a foreign jurisdiction.
The Sentencing Judge summarised the facts of the offences as follows:[44]
[o]
n 3 June 2019, 33 Apple iPhones were stolen from the Apple Store in Booragoon. On the same date, and iPad was stolen from the Telstra shop in Subiaco.
On 16 July 2019, and iPod was stolen from the Vodafone shop in Claremont.
On the same date, an iPhone and three Samsung phones were stolen from the Claremont Quarter Vodafone store … And on 28 July 2019, four Huawei phones were stolen from the Carousel Shopping Centre in Cannington.
(Without alteration.)
[44] R2, G5, page 24.
The Sentencing Judge’s comments note that all these items were found in the Applicant’s possession on 11 September 2019 when a warrant under the Criminal Investigation Act2006 (WA) was executed at his premises.
In relation to the first count, which concerned the 33 Apple iPhones, the Applicant met a person in a car park at a train station and paid $35,000 in cash for the purchase of the phones. The phones were clearly still new, each being in packing boxes.[45] This is consistent with the evidence that the Applicant gave at the hearing before the Tribunal.
[45] R2, G5, page 24.
Sentencing comments also note that a review of the Applicant’s phone, which the Applicant testified was seized by police when the warrant was executed, revealed a message
‘in relation to a potential purchase of a further 83 phones.’ The Applicant was not sentenced in relation to that message or any inference to be drawn from it. However, His Honour noted that the message showed that the Applicant was:[46]
known by persons who wish to fence stolen goods as a person who is prepared to accept them.
His Honour went on to note that:[47]
You committed these offences motivated by potential profit and you intended to sell these phones to Sydney to be resold. Thereby, potentially reducing the prospect of them being detected in this state.
[46] R2, G5, page 24.
[47] R2, G5, page 24.
A List of Court Outcomes issued by the Western Australian Police Force,
dated 14 December 2020, indicates the offences were committed between June and September 2019.[48] The Tribunal understands from the evidence that these were the dates on which the items were stolen. The Applicant’s testimony before the Tribunal was that he had purchased the 33 iPhones about two to three weeks prior to the police executing the warrant and that he had purchased 10 other items, an iPad and Android phones,
three or four months before that from a different person outside a house in Redcliffe.[49]
[48] R3, page 1.
[49] Transcript, page 14
As noted above the Applicant received a suspended sentence for the offences which he served in the community prior to being refused the visa and placed in immigration detention. As a consequence of his conviction his security and taxi licences were also cancelled.
The Applicant indicated those decisions were affirmed by the Tribunal.[50]
No further information regarding those matters was before the Tribunal.
[50] A3, page 5; Transcript, pages 13, 36.
Other conduct
As noted above, there was no evidence that the Applicant has been convicted of any other offences in Australia or abroad.
Material submitted by the Minister in the Supplementary G documents suggested that the Applicant had been involved in an incident where he was approached by police while in a parked car with friends. The Applicant was in the driver’s seat. Police located a bag of cannabis in the car which the Applicant claimed was his. He was not charged in relation to the offence but was given a Cannabis Intervention Requirement (CIR) and referred for an one-hour Cannabis Intervention Session (CIS) which he says he completed.[51]
One of the occupants of the car, Mr Rabbani, was summoned in relation to the incident.[52] The Applicant indicated in testimony that this was due to the fact that his friend had prior drug infringements or convictions. At the hearing the Applicant told the Tribunal that he had smoked cannabis, which was procured by Mr Rabbani, on a number of occasions to unwind after work driving taxis or for Uber.[53][51] A3, page 5.
[52] R3, page 7.
[53] Transcript, pages 55-57.
The material regarding this conduct was not before the Delegate.
EVIDENCE
The Applicant provided several statements to the Department and the Tribunal and gave evidence before the Tribunal. With respect to the most serious of the offences relating to the 33 iPhones, he testified that he was operating an electronics business and he was contacted by someone called ‘Jeremy’, offering to sell him a large number of new items.
He said he ‘used to deal on cash basis most of times and dealt with them at parking spots or near food outlets.’ (Without alteration.) In relation to this particular transaction he stated: [54]
I withdrew lot of money from bank to get cash in hand and took the risk of buying even I thought those devices might be suspicious or stolen.
(Without alteration.)
[54] A3, page 5.
Before the Tribunal he said that he had withdrawn some of the money, around $20,000, from the Mobi Aus account but the rest he had borrowed from friends or his business associate.[55]
[55] Transcript, Pages 29-30.
Before the Tribunal the Applicant maintained he was remorseful for his offending, particularly for the impact it would have on his family and the impact on his plans to complete his studies in Australia. He maintained that he is committed to completing his Advanced Diploma of Telecommunications Network Engineering course and to not engaging again in the business activity that led to the offences.
The Applicant told the Tribunal he was ashamed for the offences and considered them to be serious.[56] He also regarded that he himself had been a victim of those who had sold him the stolen items.[57] He claimed to have been unaware that they were stolen and to have taken some steps to verify this.[58] He also referred in several statements to the fact that he had paid $35,000 in cash for the items which he had lost.[59] He also said he had been unable to prove he was innocent due to the circumstances and advice from his lawyer.[60]
[56] Transcript, pages 18,
[57] Transcript, pages 31-32; A4.
[58] A4,
[59] A4.
[60] G23, pages 1, 169.
The Applicant stated that since he was charged he had ceased operating the business and had no intention of returning to it. He said he had become more focussed on his studies and had worked for an after-hours medical service and a logistics business where he was a valued employee. This was supported by letters from his former employers.[61]
While the Tribunal accepts the Applicant was a valued member of those businesses and was a responsible employee, the Tribunal notes the letters from the employers did not indicate that the writers had been informed about or possessed any knowledge about the Applicant’s criminal offending. On this basis the Tribunal places less weight on the letters as evidence of good character though the Tribunal acknowledges the letters as evidence of the Applicant’s focus on his employment and studies and positive work ethic including since he was convicted. These are factors that the Tribunal considers would reduce the Applicant’s risk of re-offending (considered further below).
[61] A3, page 1; A11.
Dr Watts provided a psychological assessment report to the Tribunal addressing issues including the Applicant’s risk of re-offending.[62] The Tribunal accepts that Dr Watts is an experienced and credentialed clinical psychologist. In preparing his report he interviewed the Applicant for about one and a half hours on Zoom. He also had regard to documents including the Sentencing Remarks,[63] and a number of statements from the Applicant.[64]
[62] A3, pages 50-55; see page 54 for information specifically on re-offending likelihood.
[63] A3, page 51, this document being R2, G5.
[64]Dr Watts lists the documents he was provided with at A3, page 51. The documents are also listed in the letter from Estrin Saul to Dr Watts seeking the psychological assessment (A3, page 60). At the hearing the Applicant’s representative identified these documents as G5 (dot points one and two – Extract of Proceedings and Sentencing Remarks), G4, G23; G10, page 159; G3; G8, pages 36-39; and G18, pages 100-101. The Tribunal notes the letter from Estrin Saul Lawyers also indicated Dr Watts was given a copy of the Administrative Appeals Tribunal Guideline: Persons Giving Expert and Opinion Evidence.
Dr Watts’ overall assessment was that Mr Sadiq presented a low risk of re-offending.
Dr Watts noted:[65]
In conducting this assessment, I would consider Mr Sadiq to be a low risk of
re-offending. Low risk would also be described as minimal risk. In particular, I would be of the view that the consequence of this offence, including the suspended sentence and the detention due to immigration issues, is likely to have a major deterrent effect on him.
[65] A3, pages 54-55.
On questioning from the Tribunal, Dr Watts testified that the Applicant’s expressions of remorse were not, in his opinion, inconsistent with the Applicant’s view that the he was also a victim in the offending as that reflected the Applicant’s relative naivety in engaging in the conduct and his sense of personal loss due to the consequences of the activity which he had suffered, including the loss of money but also the impacts on his visa status and future plans and the shame and disappointment of his family. [66]
[66] Transcript, pages 48-49, 51-52.
Dr Watts noted that the Applicant did not present with risk factors for re-offending.
He notes:[67]
He seems to have come from a good background, has strong religious morals, and appears to understand the need to work for a living. Therefore, both in values and attitudes, Mr Sadiq seemed to be quite different from the typical offender.
[67] A3, page 54.
Dr Watts assessed that the Applicant’s psychological testing indicated significant levels of anxiety and depression but not major mental illness. He observed that the Applicant was relatively young and ‘a fairly naïve and reasonably sheltered young person.’ The fact that he was caught in early-stage offending is likely to have a ‘bigger deterrent effect than someone who has a history of offending.’ Dr Watts assessed that the Applicant understood the seriousness of the offending, noting;
The only area where Mr Sadiq would be seen as lacking in taking responsibility is that there are a number of elements of the offending which should have triggered alerts and did not.
Dr Watts did not appear to be aware in preparing the assessment that the stolen items were purchased over a period of several months and in at least two transactions. At hearing,
in response to the Respondent’s questioning regarding whether this would indicate a greater risk of re-offending Dr Watts said: ‘Yes because that would be … the opportunity to find out and experience whether they were stolen or not stolen. Or, you know, come to some realisation of what’s going on.’ [68]
[68] Transcript, pages 47-48.
Dr Watts was also not aware of the Applicant’s cannabis use, having been told by the Applicant that he did not use drugs. However, when informed of this at the hearing, Dr Watts indicated he did not regard the Applicant’s cannabis use increased the risk of offending as cannabis is not considered a significant risk factor in this regard. However, Dr Watts indicated the denial of drug use would raise questions regarding the Applicant’s ‘reliability’.[69] The Tribunal understood Dr Watts to be referring to the reliability of the information the Applicant had provided to him in the assessment interview.
[69] Transcript, page 51.
While there were some issues on which it appeared Dr Watts had not been fully appraised of facts by the Applicant, overall the Tribunal accepts his report as an assessment of the Applicant’s risk factors for future criminal conduct and places weight on it, noting that it is the only psychological report assessing risk which is before the Tribunal. The report is considered further below.
The Sentencing Judge also accepted the Applicant presented a low risk of re-offending.
His Honour considered that the Applicant’s guilty pleas ‘demonstrate an acceptance of responsibility’ and remorse.[70] The Sentencing Judge assessed that the Applicant took a commercial risk for potential commercial gain. His Honour also considered that the Applicant had reasonable prospects for rehabilitation and that, given his involvement with the criminal justice system, he would be unlikely to commit this type of offence again.[71]
[70] R2, G5, pages 2-3.
[71] R2, G5, pages 24-25.
The Applicant’s brother and cousin also testified as to the Applicant’s remorse and determination not to re-offend. The Applicant’s brother indicated the Applicant was unaware at the time of the offences that he was committing a crime and what the consequences could be. Since his conviction he had changed a lot and was ‘studying, working and getting involved in the Australian broader community.’[72] He said that he intends for his brother to return to live with him and his wife and children, where he can support the Applicant, ’financially, mentally and as a mentor’.[73] He noted the Applicant’s offending was out of character and as a result the Applicant had lost trust and credibility. According to his brother, the Applicant ‘has zero to nil chance of reoffending in any criminal activity’
(without alteration). If he were to re-offend, his brother indicated he would be happy to see him removed by the Department.[74]
[72] A3, page 2.
[73] A3, page 3.
[74] A3, page 2.
Overall, the Tribunal found the Applicant’s brother to be a credible witness though his answers to some questions, in particular regarding the profits made by the enterprise, were vague and, in the Tribunal’s view, not consistent with his qualifications as an accountant and his claimed role in managing the financial affairs of the business. He was unable to directly answer questions regarding the filing of taxes for the business and with respect to the profit margins on the sale of items he initially claimed not to remember how much money was earned and later made a very general estimate of the value (around $100 on phones)[75] which significantly exceeded that figure offered in evidence by the Applicant (who claimed to have made between $10 and $15 per phone sold).[76] The Tribunal notes, however, having regard to the evidence of the Applicant and his brother overall the Tribunal considers the brother’s evidence on this issue to be more plausible both as an explanation for the risks the applicant was prepared to take in making the transactions and for the amount of money he was able to access in the Mobi Aus account for the 33 iPhone purchase, The Tribunal regarded that the Applicant’s account of earning between $10-$15 per phone sold were implausible in light of these factors.
[75] Transcript, page 74.
[76] Transcript, page 62.
The Applicant’s cousin spoke of how out of character the Applicant’s offences were and how highly he was regarded among the family. His cousin said they would miss him if he left as he was planning to make a life in Australia and his family needed him here.[77]
[77] Transcript, pages 81-83.
Other character references spoke to the Applicant’s commitment to his family, remorse for the offending, involvement in community activities including club cricket and to his generally good character.[78] The Tribunal accepts on the basis of these statements that the Applicant is a valued friend and family member and that he exhibits care and concern for those around him. The Tribunal also accepts he has been actively involved in community cricket.
[78] See for example A3, pages 34-35; A3, pages 38-39; A3, pages 40-41; G20, page 103;
However, some of the character witnesses do not disclose that the writers had been informed about or possessed any knowledge about the Applicant’s criminal offending.
This includes the statements of Mr Talha Khan (the Applicant’s employer at the After Hours Home Doctor Service)[79], Mr Mark Micallef (the Applicant’s former employer at ACE Logistic Solutions),[80] Mr Shafiq Ahmed (a family friend of the Applicant and his brother),[81] Mr Oscar Monsalve (one of the Applicant’s former teachers),[82] Mr Lachlan Chilman (Muchea Cricket Club where the Applicant is a team member and volunteer),[83] Ms Lanita Diri (a friend of the Applicant),[84] and Mr Zakaria Mazuki (from Kewdale Mosque who is acquainted with the Applicant).[85] Other statements include inaccurate accounts of the offences, such as that by Mr Harley Weston, a friend of the Applicant who notes:[86]My understanding is that he purchased the devices for his family and paid the money from which he worked hard for only to later find out that the devices were stolen.
[79] A3, page 1.
[80] A3, page 13; A11.
[81] G12, page 60.
[82] G12, page 61.
[83] A12.
[84] A15.
[85] A18.
[86] A3, page 36.
For this reason, the Tribunal affords these statements limited weight in the context of assessing the character considerations including the risk of future offending though the Tribunal accepts that those who made the statements value the Applicant as a person who they regard to be of good character. The Tribunal notes that Ayesha Ali, the Applicant’s sister-in-law does not refer to the Applicant’s offending history,[87] however the Tribunal infers from her husband’s evidence and the fact she and the Applicant shared a home that she was aware of his convictions.
[87] A3, page 4.
Further, it appeared, based on the Applicant’s testimony and the material regarding the Applicant’s other conduct, that several of his character referees were friends of the Applicant who had been with him when the Applicant was questioned by the police with respect to the cannabis in his car. One of these was summoned to appear over the incident. The Applicant told the Tribunal he had smoked cannabis with his friends on several occasions. On the basis that Mr Rabbani,[88] Mr Ali Hassan[89] and Mr Akhtar[90] were involved in conduct with the Applicant in which he disregarded Australia’s law regarding illicit drug use, involving cannabis, the Tribunal places limited weight on their statements as to evidence of the Applicant’s good character.
[88] A3, page 43.
[89] A3, page 40.
[90] A3, page 31
The Applicant also testified that he is involved in community cricket playing for the Muchea Cricket Club and assisting the younger players with leadership and life skills support. Mr Chilman’s letter provides evidence in support of these submissions.[91] He also submitted that he volunteers to support the local clubs in the Chittering region and makes a significant community contribution in this regard.[92] Several witnesses attested to the Applicant’s love of cricket and his commitment to the cricket community. The Tribunal accepts the Applicant is engaged in community cricket and is to be commended for this. The Tribunal regards this as evidence of a desire to contribute to the community through sport and considers his commitment to community sport to be a protective factor reducing his risk of reoffending.
[91] A12.
[92] Transcript, page 102.
The Tribunal notes that the Applicant also provided three receipts for $100 donations to Epilepsy WA from October, November and December 2020.[93] The Applicant told the Tribunal at the hearing that he made the donations as a religious gesture of atonement which he hoped would help him resolve his troubles. He stated that:[94]
[A]ccording to my religious beliefs, when you are in certain kind of trouble you should, like, make a donation, so that will be in your favour, so you will be like,
more easy to resolve that trouble. So I decided to donate some amount of money in terms for the welfare of the community so they can be used on something good.
So that, like, you know, I will be out of trouble, So I decided to donate some money for the community so that can be used in good way. And yes, definitely good will come back to me.(Without alteration.)
[93] A3, pages 16, 48, 49. See also A8.
[94] Transcript, page 57.
When the Tribunal asked what the event was that he was looking for good to come back to him for he said he believed when he made the first donation, it was when he was refused the visa.[95] However as the donation date was the same date as when the Delegate’s decision was made, but notification was several days later, the Tribunal infers the Applicant was not referring to the Visa being refused but to the fact he was on notice the Department was considering refusal. In any event, the Tribunal did not consider in the circumstances that the donations were made to improve the perception of the Applicant’s character in the context of the Visa application process (or the review) but rather as a form of religious atonement he believed may improve his chances of a positive outcome in that process. In this regard, the Tribunal regards the donations as commendable, however, the Tribunal does not place significant weight on these three donations as evidence of remorse or rehabilitation on the part of the Applicant.
[95] Transcript, page 57.
Further consideration to the evidence submitted by the Applicant, including at the hearing, is given below.
CONSIDERATION
Section 501(6)(d)(i) of the Character Test
Applying the Character Test
As noted above, the Delegate considered the relevant ground of the character test in the Applicant’s case to be s 501(6)(d)(i) of the Migration Act. The Delegate found that the Applicant did not satisfy the Department that he passed the character test and did not pass the character test by virtue of s 501(6)(d)(i).
The issue for the Tribunal to determine is whether, based on the Applicant’s offending history and prior conduct, there is a risk that the Applicant ‘would … engage in criminal conduct’[96]. The evidence must suggest ‘that there is more than a minimal or remote chance that the person … would engage in [the] conduct specified.’[97]
[96] Section 501(6)(d)(i) of the Migration Act.
[97] Direction no. 79, Annex A, Section 2, Paragraph 6.
Annex A in Direction no. 79 provides direction on the application of the character test set out in s 501(6) of the Migration Act.[98]
[98] Direction no. 79, Annex A.
Annex A relevantly states in the ‘Overview of the character test’ for discretionary visa cancellation or refusal:[99]
(1)Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decisionmaker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
(2)Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
(3)Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
…….
(5)If the person does not pass the character test, section 501(1) of the Act enables a visa to be refused and section 501(2) of the Act enables a visa to be cancelled.
[99] Direction no. 79, Annex A, Section 1.
Paragraph 6 of Section 2 of Annex A provides guidance on the application of s 501(6)(d) as follows: [100]
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act…
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
[100] Direction no. 79, Annex A, Section 2, Paragraph 6. The Tribunal notes that the Respondent’s submissions refer to ‘Section 2, Paragraph 5’ however this appears to be a typographical error.
With respect to s 501(6)(d)(i), Direction no. 79 provides:[101]
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
[101] Direction no. 79, Annex A, Section 2, Paragraph 6.1.
In considering the character test, consideration must also be had to the nature of the visa to be refused or cancelled. In this respect the Tribunal notes that the Visa is a substantive visa which would enable the Applicant to remain in the community for up to five years while enrolled in a course of study at an education provider. It is not, however, a permanent visa and, as such, in the Tribunal’s view, is to be considered as falling within the category of limited stay visas in relation to which Direction no. 79 makes specific comment.[102]
This was common ground among the parties.
[102] See, for example, at para 6.3(6).
Risk of criminal conduct (s 501(6)(d)(i))
The issues surrounding consideration of risk under s 501(6)(d) have been extensively considered by the Tribunal and superior courts.[103] The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.
[103] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
Subsections 501(6)(d)(i), (ii) and (v) of the Migration Act are not satisfied unless,
in the event that the Applicant were allowed to remain in Australia, there is a risk that he would engage in the forms of conduct in Australia outlined in those provisions.
That test was discussed by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, at 450-1 [122]-[128]. Her Honour drew attention to the relevant principles to be considered in construing the tests in s 501(6) of the Migration Act as follows at 451 [129]:
Each of the criteria set out in s 501(6) which may cause a person to fail the character test involve the protection of the Australian community. “Protection” is not a narrow concept and extends beyond preventing members of the Australian community from being threatened with, or the victims of, physical violence or conduct which is criminal under Australian law. It may involve, as s 501(6)(d)(iii) contemplates, ensuring that particular members of the Australian community are not vilified. It may also involve protection at a highly individual level: for example, if there is a risk a particular person in Australia would be harassed or stalked by a prospective visa applicant (s 501(6)(d)(ii)).
The Tribunal notes that the extent of impediments to removal is not a consideration mentioned in Direction no. 79 with respect to visa refusals under section 501(1).
In any event, no evidence was offered to support the Applicant’s claim that he would be subject to action to ‘restrict his movements’[171] in Pakistan such that would amount to a clearly articulated claim of harm such as would give rise to an issue of non-refoulment with respect to the Applicant’s removal to Pakistan. In this regard, the Tribunal notes that the evidence established that the Applicant has returned repeatedly to Pakistan while he has been studying in Australia and has family members remaining there who are working and running businesses. Further, the Applicant’s brother indicated they had been planning to return to Pakistan for a visit as a family last year however this was prevented by the COVID-19 pandemic.[172] While the Applicant’s prior returns to Pakistan have been voluntary,
no evidence has been offered by the Applicant to suggest that his involuntary return to Pakistan would give rise to a risk of harm of the kind that might give rise to an
non-refoulment obligation for Australia.
[171] A2.
[172] A3, page 3.
For the avoidance of doubt, the Tribunal is not satisfied, on the material before it,
that non-refoulement obligations arise with respect to the Applicant’s potential removal to Pakistan for the reasons set out below. Having considered the submissions and evidence of the Applicant, the Tribunal is not satisfied that the Applicant presented to the Tribunal
‘a serious and substantive basis in fact and in law’[173] for a claim that his return to Pakistan would breach Australia’s non-refoulement obligations.
[173] Omar at [82].
On the basis of the evidence before it, the Tribunal is not satisfied that an issue of
non-refoulement obligations arise with respect to the Applicant’s return to Pakistan.
The Tribunal finds that this consideration is neutral in the Applicant’s circumstances.
Impact on family members
Paragraph 12.2(1) of Direction No. 79 provides that:
(1) Impact of visa refusal on immediately 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;
The Applicant has a number of family members in Australia, including his brother,
sister-in-law, nieces, uncle, aunt and cousins. It is clear from the evidence that he is close to his family, particularly his brother’s family with whom he has lived for a number of years.[174]
He believes his family will ‘lose a good friend, a good brother’ if he is removed.[175]
The Tribunal notes his uncle was a financial support for his student visa application,
a number of family members provided statements in support and his cousin gave evidence before the Tribunal, indicating the existence of a supportive relationship with his extended family in Australia. [176]
[174] Transcript, pages 67, 69.
[175] Transcript, page 20.
[176] R2, G21, page 141.
Both his brother and cousin provided statements and gave evidence at the hearing.[177] That evidence attested to the emotional impact they would suffer if the Applicant left Australia.[178] While the Applicant’s cousin was unfamiliar with some details of his life, including his current studies,[179] the Tribunal accepted he values the Applicant’s presence in Australia and that the broader family wish him to remain here. His cousin also testified that the Applicant’s removal on character grounds would be distressing to the family as they are moral and law abiding and ‘not exposed to this kind of stuff.’[180]
[177] See Statement at A3, page 2, A9, R2, G11 page 59 and Transcript, pages 65-77 for the Applicant’s brother’s statements and evidence. See Statement at A3, page 28, A10 and Transcript, pages 78-84 for the Applicant’s cousin’s statements and evidence.
[178] Transcript, pages 69, 83.
[179] Transcript, page 82.
[180] Transcript, page 83.
The Respondent submitted, and the Tribunal accepts, that the impact on family members must be considered in the context of the nature of the Visa for which the Applicant applied. It was a limited stay visa and the Respondent submits that it must be inferred from this that the Applicant would not be remaining permanently in Australia and, at some point, would be separated from the family here. The Tribunal accepts that this reduces, somewhat,
the impact of refusal on the Applicant’s family members in Australia, though it notes the testimony of his cousin to the effect that, for his family, his voluntary return to Pakistan would be different to his forced removal on character grounds.[181] The Tribunal accepts that the Applicant’s extended family in Australia would suffer emotionally from his removal, particularly in the case of his brother and his brother’s family. Further, his brother and
sister-in-law would lose his assistance and support with the care of their young children which would impact negatively, emotionally and financially, on both the parents and their daughters.
[181] Transcript, page 83.
Having considered the evidence and the statements from the Applicant and his family members, the Tribunal considers that their interests weigh in favour of not refusing the Applicant’s Visa application. Given the limited stay nature of the Visa the Tribunal gives this consideration moderate weight.
Impact on victims
Paragraph 12.3(1) of Direction No. 79 provides that:
(1)Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;
The Tribunal has limited information before it to assess the impact of a decision not to refuse the Applicant’s application for the Visa on the victims of the Applicant’s offending or on the family members of the victims. In this case, to the extent a victim was identified, it may be said to be the businesses from which the items were stolen.
There is no evidence as to how the victims of the Applicant’s offending would be impacted by a decision to grant the Visa and the Tribunal finds this consideration is not relevant to the circumstances of the Applicant’s case.
Impact on Australian business interests
Paragraph 12.2(1) of Direction No 79 provides that the Tribunal is to consider the:
(1) Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project,
or delivery of an important service in Australia.While the Applicant has been in regular employment since he has been in Australia,
there was no specific evidence regarding the impact of refusal on business interests in Australia. The Tribunal notes that Mr Micallef states in his undated letter that
‘… Imran has become a critical part of the distribution chain in a relatively short period of time.’[182] However, in the Tribunal’s view, the letter does not establish that the refusal of the Visa would significantly compromise the delivery of a major project or important service in Australia. Further, the Tribunal notes that as this is a student visa it can be inferred that the Applicant would only be a part-time or casual employee of the business, consistent with the restrictions applying to employment on student visas.
[182] A11.
There is insufficient evidence before the Tribunal to establish that the Visa refusal would significantly compromise the delivery of a major project or delivery of an importance service in Australia, and the Applicant did not submit that it would. Accordingly, the Tribunal finds that this consideration has no application in the present matter.
Other consideration – Community involvement
As noted above, the matters the Tribunal can take into account in the exercise of its discretion are not limited to those detailed in Direction no 79. The Applicant raised the issue of his commitment to, and involvement in, the Australian community principally though cricket and consistent employment. The Tribunal has considered these submissions both in terms of the risk of reoffending, the Protection of the Australian Community and as a separate consideration.
As noted above, the Tribunal accepts the evidence that the Applicant is committed to community cricket and has made a contribution to the community through his engagement with the sport. The Tribunal also accepts the Applicant has been consistently employed and has been regarded as a valued employee. While the Applicant is to be commended for these activities, the Tribunal does not regard on the evidence that this is a consideration upon which significant weight should be placed in exercising the discretion to refuse the visa and accordingly the Tribunal gives this consideration limited weight.
CONCLUSION
The Tribunal considers that the Applicant does not pass the character test as defined in
s 501(6)(d)(i) for the reasons set out in these Reasons for Decision. This enlivens the discretion under s 501(1) of the Act to refuse the Applicant’s Visa application, taking into account the primary and other considerations set out in Direction no. 79 when exercising that discretion.The Tribunal concludes that the two ‘primary considerations’ of ‘Protection of the Australian community’ and ‘Expectations of the Australian Community’, weigh in favour of refusing the Applicant’s visa application under s 501(1) of the Act. In this regard the Tribunal concluded that the protection of the Australian community weighed slightly in favour of refusing the Visa and the expectation of the Australian community weighed moderately in favour of refusing the Visa application. The Tribunal concludes that the third ‘primary consideration’ of ‘The best interests of minor children in Australia affected by the decision’, weighs moderately against refusing the Applicant’s Visa application under s 501(1) of the Migration Act.
One of the ‘other considerations’ being the ‘impact on family members’ weighs moderately against refusing the Applicant’s visa application. The remaining ‘other considerations’ neither weigh for nor against refusing the Applicant’s visa application or are not relevant to the Applicant’s circumstances. The additional other consideration of the Applicant’s involvement in the community weighs against refusing the visa but the Tribunal considers only limited weight should be afforded to this consideration.
Having taken all the circumstances into account the Tribunal considers, on balance,
that the considerations weighing in favour of refusing the Applicant’s visa application outweigh those weighing against refusal.In exercising discretion under s 501(1) of the Act, the Tribunal is satisfied that the Applicant’s visa application should be refused under s 501(1).
The Tribunal is of the opinion that the correct or preferable decision is to affirm the decision of the Delegate refusing the Applicant’s visa application.
DECISION
The Tribunal affirms the decision of the Delegate of the Respondent dated 29 October 2020 to refuse the Applicant’s application for a Student (Temporary) (Class TU) visa under
s 501(1) of the Migration Act.
I certify that the preceding 212 (two hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
....................[sgd]....................................................
Associate
Dated: 1 February 2021
Dates of hearing: 19 and 21 January 2021 Counsel for the Applicant: Ms Graziotti Solicitors for the Applicant: Estrin Saul Lawyers Counsel for the Respondent: Mr Chan Solicitors for the Respondent: Sparke Helmore Lawyers ATTACHMENT A – EXHIBIT LIST
The Tribunal admitted the following documents into evidence
·Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions dated
21 December 2020;·Exhibit A2 – Applicant’s Further Submissions in Reply dated 14 January 2021;
·Exhibit A3 – Applicant’s Bundle of Evidence (88 pages) (including material submitted on 22 December 2020 and on 14 January 2021);
·Exhibit A4 – Applicant's Statutory Declaration sworn on 16 November 2020;
·Exhibit A5 – Applicant's statement in response to notice of decision, undated;
·Exhibit A6 – Overseas Student Confirmation of Enrolment Advanced Diploma of Telecommunications Network Engineering;
·Exhibit A7 – Transcript and certificate for Diploma of Information Technology Networking;
·Exhibit A8 – Tax invoice – Donation to Epilepsy WA;
·Exhibit A9 – Letter of support from Mr Ali Aefran (Brother), undated;
·Exhibit A10 – Letter of support from Mr Sohaib Sadiq (Cousin), undated;
·Exhibit A11 – Letter of support from Mr Mark Micallef, General Manager at ACE Logistic Solutions, undated;
·Exhibit A12 – Letter of support from Mr Lachlan Chilman, Captain of Muchea Senior Cricket Club, undated;
·Exhibit A13 – Letter of support from Mr Choudhary Akhtar, dated 12 November 2020;
·Exhibit A14 – Character reference from Mr Talha Khan, Managing Director of AfterHours Home Doctor Services Australia, dated 13 November 2020;
·Exhibit A15 – Character reference from Ms Lanita Diri, dated 12 November 2020;
·Exhibit A16 – Character reference from Mr Harley Weston, dated 11 November 2020;
·Exhibit A17 – Character reference from Mr Zakaria Mazuki, undated;
·Exhibit A18 – Character reference from Ms Jade-Rose Ginger, undated;
·Exhibit A19 – Character reference from Mr Hamza Ilyas, undated;
·Exhibit R1 – Respondent’s Statement of Facts, Issues and Contentions dated
11 January 2021;·Exhibit R2 G documents (G1 to G23) (178 pages) submitted to the Tribunal by the Respondent on 25 November 2020; and
·Exhibit R3 – Supplementary G documents (15 pages) submitted to the Tribunal by the Respondent on 11 January 2021.
- AGLC
- Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80
- Case
- [2021] AATA 80
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine two primary issues: first, whether the Applicant failed the character test under section 501(6)(d)(i) of the *Migration Act*, and second, if he did not pass the character test, whether the Tribunal should exercise its discretion under section 501(1) to refuse the visa. The Applicant contended there was no risk of further criminal conduct, while the Respondent argued that the Applicant's past actions indicated a real risk of future offending and that the balance of considerations under Direction No. 79 favoured refusal.
The Tribunal considered the Applicant's evidence regarding his offending, including his explanation for purchasing suspicious items and his claims of remorse and a desire to focus on his studies and employment. While acknowledging the Applicant's positive work ethic and focus on studies, the Tribunal placed less weight on employer references as evidence of good character, noting they did not indicate knowledge of his criminal history. Ultimately, the Tribunal was not satisfied that the Applicant passed the character test and found that the risk to the Australian community outweighed any countervailing considerations. Consequently, the Tribunal affirmed the Delegate's decision to refuse the Applicant's visa application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 29 October 2020 the Applicant’s application for the Visa was refused by the Delegate under s 501(1) of the Migration Act. As a result of this decision his bridging visa was cancelled by operation of law[21] and the Applicant entered immigration detention on 13 November 2020.[22] The Applicant was notified of the decision to refuse the Visa by email to his then authorised representative on 9 November 2020.[21] Migration Act 1958 (Cth), s 501F(3) (Migration Act).[22] Pursuant to s 189(1) of the Migration Act. According to the Statement of Reasons for refusal[23] the Delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(d)(i) of the Migration Act. The Delegate found that if the Applicant remained in Australia there was a risk he would engage in criminal conduct. Having concluded the Applicant did not pass the character test, the Delegate found that the Applicant represented an unacceptable risk of harm to the Australian community and that there were no sufficiently countervailing considerations to warrant the Australian community accepting any level of risk. On the basis of these considerations, the Delegate decided to exercise their discretion to refuse the Visa. [23] R2, G3, pages 16-20. On 9 November 2020 the Applicant filed an application for review of the Reviewable Decision with the Tribunal.[24][24] R2, G2. It was common ground between the parties that the Applicant’s 84-day timeframe for the review of the refusal of the visa ends on 1 February 2021.THE ISSUES The issues for determination by this Tribunal are: (a)whether the Applicant does not pass the character test on the basis of 501(6)(d)(i) of the Migration Act; and (b)if not, whether the Tribunal should exercise the discretion under s 501(1) of the Migration Act to refuse to grant the Applicant the Visa. The Applicant seeks to challenge the refusal of his application for the Visa both on the ground that he passes the character test on the basis that there is no risk he will engage in further criminal conduct in Australia and, in the alternative, that the discretion to refuse the Visa should not be exercised in particular having regard to the low risk he would reoffend, the best interests of his nieces and the impact on his family. The Respondent submits that the Applicant’s conduct is of a type that there is a real risk that if the Applicant were to remain in Australia, he would engage in further criminal conduct. The Respondent submits that the Applicant’s Visa should be refused because he does not pass the character test and the balance of considerations under Direction no. 79 is in favour of the discretion to refuse the Visa being exercised. If the Applicant satisfies the Tribunal that he satisfies s 501(6)(d)(i), the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under s 501(1) of the Migration Act is not enlivened. However, in such circumstances, the matter would be remitted to the Respondent for further consideration of the criteria for the visa. That is, to remit the matter for reconsideration with the direction that the Applicant does not fail the character test by virtue of s 501(1)(6)(d)(i) of the Migration Act.