SWKZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3853

SWKZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3853 (20 November 2023)
Division:                  GENERAL DIVISION
File Number(s):2023/6358
Re:SWKZ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 20 November 2023
Date of written reasons: 24 November 2023
Place:Sydney

The Tribunal affirms the decision under review.
...................................[SGD].....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – refusal to grant visa – failure to pass the character test – supply of prohibited drug in a large commercial quantity – whether to exercise discretion to refuse to grant the visa – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – strength nature and duration of ties to Australia – expectations of the Australian community – legal consequences of the decision – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 48, 48B, 189, 197, 197C, 198, 499, 501, 501CA
Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)
Migration Regulations 1994 (Cth)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10
Nepata v Minister for Home Affairs [2019] FCA 1197
Re SalazarArbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
24 November 2023
BACKGROUND

The Applicant was born in Iran in July 1991. He is an Iranian national. He arrived in Australia by boat on 4 June 2013.[1] On 27 September 2017, the Applicant applied for a Safe Haven Enterprise (Class XE) visa (the visa).[2]
[1] Ex 3.
[2] Ex 12, 133-164.
On 6 March 2019, the District Court of New South Wales convicted the Applicant of drug offences committed between 21 and 22 June 2016, namely supply prohibited drug >=commercial quantity -SI, two counts of supply prohibited drug >=large commercial quantity -SI; and participate criminal group contribute criminal activity -T2. Three further offences were taken into account on Form 1, which was supply prohibited drug >=commercial quantity -SI, supply prohibited drug >small & <=indictable quantity -T1 and supply a prohibited drug. The District Court sentenced the Applicant to an aggregate term of 12 years and 6 months’ imprisonment.
On 1 July 2020, the NSW Court of Criminal Appeal quashed the sentence imposed by the District Court and re-sentenced the Applicant to an aggregate term of 11 years and 3 months’ imprisonment.[3]
[3] Ex 12, 23-27.
Pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act), on 25 August 2023, a delegate refused to grant the visa.[4]
[4] Ex 12, 7.
The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.
LEGISLATION
Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
MINISTERIAL DIRECTION NO 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[5]
[5] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The preamble in Direction 99 sets out the objectives[6] and the overarching principles[7] that provide the framework within which decision-makers should approach their task under ss 501 and 501CA.
[6] Direction 99 [5.1].
[7] Direction 99 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task:
(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 measurable 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(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 measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as 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 strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.”
Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Applicant’s Statement of Facts, Issues, and Contentions (SOFIC), filed on 26 October 2023 (Exhibit 1);
·The Respondent’s SOFIC, filed on 30 October 2023 (Exhibit 2);
·Applicant’s Statement, dated 26 October 2023 (Exhibit 3);
·Statutory Declaration of Mr Nejad, dated 26 October 2023 (Exhibit 4);
·Statutory Declaration of Mr Hendawi, dated 26 October 2023 (Exhibit 5);
·Statutory Declaration of Ms Hajiabedin, dated 26 October 2023 (Exhibit 6);
·Witness statement of Father Tadros El-Bakhoumi, dated 30 October 2023 (Exhibit 7);
·Witness statement of Ms Barjestehmanesh, dated 1 November 2023 (Exhibit 8);
·Applicant’s medical records, filed on 3 November 2023 (Exhibit 9);
·Certificate of Attendance for Addiction Support Program, filed on 3 November 2023 (Exhibit 10);
·Respondent’s Tender Bundle, filed on 30 October 2023 (Exhibit 11);
·G-Documents, filed on 8 September 2023 (Exhibit 12); and
·Post-hearing submissions.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The character test is generally concerned with the protection of the Australian community from the risk of harm.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because the Applicant has a 'substantial criminal record' pursuant to s 501(7)(c) in that he has been sentenced to a term of imprisonment of 12 months or more.
It is not in dispute that the Applicant does not meet the character test. On 1 July 2020, the NSW Court of Criminal Appeal re-sentenced the Applicant to an aggregate term of 11 years and 3 months’ imprisonment. As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
The issue before the Tribunal is whether the visa should be refused under s 501(1) of the Act.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. It identifies certain principles which provide a framework within which decision-makers should approach their task.[8] It prescribes relevant considerations which must be taken into account and provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[9]
[8] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 99.
[9] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the power conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in determining matters under ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[10]
[10] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[11] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[12]
[11] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[12] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[13] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in determining individual cases.[14] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather it is the application by a decision-maker to the evidence and material in an individual case.[15]
THE PRIMARY CONSIDERATIONS
[13] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[14] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[15] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that 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 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.’[16] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[17]
[16] Direction 99 [8.1(1)].
[17] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa, or revoke a visa cancellation.[18]
The seriousness of the Applicant’s conduct
[18] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The Applicant’s criminal history
In the relation to the nature and seriousness of conduct, Direction 99 sets out the types of conduct that may be considered very serious, including violent and sexual crimes, crimes against women and children and acts of family violence.[19] However, the Direction does not limit the range of conduct that may be considered to be very serious or serious; the Direction at paragraphs 8.1.1(a) and (b) clearly states “without limiting the range of conduct” that may be considered very serious or serious, indicating that the list of offences is not an exhaustive list.
[19] Direction 99 [8.1.1(1)].
The Applicant’s criminal history is that on 1 July 2020, he was convicted on appeal of supply prohibited drug >=commercial quantity, supply prohibited drug >=large commercial quantity (two counts); and participate criminal group contribute criminal activity. The NSW Court of Criminal Appeal re-sentenced the Applicant to an aggregate term of 11 years and 3 months’ imprisonment.[20]
[20] Ex 12, 44-77.
The facts of the Applicant’s offending are summarised by the sentencing Court, His Honour Acting Judge Delaney. In relation to the circumstances of the offences, the Court noted that a strike force was established in early 2016 and identified a number of persons who were alleged to be involved in the supply of illicit drugs, one of whom was the Applicant. The Court observed that:
Investigations identified [the Applicant] at the centre of a criminal group supplying a range of prohibited drugs on a regular and systematic basis, but in particular, MDMA. During the course of the investigations others were identified as associates of the offender … Between the 18th and 24 May 2016 numerous telephone conversations were intercepted … These were attempts by the offender to obtain a large commercial quantity of MDMA for the purpose of supply. [The Applicant] discussed with others how that would be done … the offender continued to discuss these matters over the period for 21 May and arranged to meet so that the attempts could continue. According to the agreed facts, the attempts to obtain a kilogram of MDMA recommenced on Monday 23 May, having been previously unsuccessful when there were discussions about bringing samples to one place or the other.”[21]
[21] Ex 12, 28-32.
The Court’s findings that the Applicant was at the centre of a criminal group involved in the regular supply of prohibited substances is significant. The Applicant negotiated with the supplier the price of obtaining 1 kilogram of MDMA and his participation was more involved than the others.
In relation to the charge of supply prohibited drug >=large commercial quantity, investigations intercepted telephone calls on 21 June 2016 between the Applicant and the supplier about purchasing three kilograms of methylamphetamine for $80,000 per kilogram. Negotiations continued and ultimately the Applicant was placed under arrest, and he stated to the police that a backpack contained ice purchased for $80,000.[22]
[22] Ex 12, 33.
In relation to criminality, the Court found that:
…the supply a large commercial quantity of prohibited drug under 1.145[23] kilograms of methylamphetamine is just below mid-range of objective criminality, whereas the supply a prohibited quantity of commercial drug is below mid-range and the, participate in criminal group is equally below mid-range. Nevertheless, these are all very serious offences requiring appropriate recognition and penalty in accordance with the views more recently expressed in the R v Parente…[24]
[23] This amount was noted by the Criminal Court of Appeal to be incorrect and that the correct amount was 1.104kg – see Ex 12, 57.
[24] Ex 12, 35.

The sentencing Court therefore considered all the offences to be serious. The Criminal Court of Appeal (CCA) concluded that “no error has been demonstrated in the judge’s assessment of the objective seriousness of the offence as being “below mid-range”,[25] although the Court found that “a modest discount should have been given for past assistance”.[26] CCA however agreed with the sentencing Court’s assessment in relation to the objective scale of seriousness.[27]
[25] Ex 12, 64.
[26] Ex 12, 67.
[27] Ex 12, 75.
In the Applicant’s SOFIC, it was accepted that the Applicant’s offending is serious and accepted the sentencing Court’s assessments that the objective criminality was just below mid-range and below mid-range.[28] The Applicant however contended that the offences committed by the Applicant do not fall within the types of offences contemplated by paragraph 8.1.1 of the Direction.[29] As mentioned earlier, the Direction does not limit the range of conduct that may be considered to be very serious or serious; the Direction at paragraphs 8.1.1(a) and (b) clearly states “without limiting the range of conduct” that may be considered very serious or serious, indicating that the list of offences is not an exhaustive list.
[28] Ex 1, [50].
[29] Ex 1, [50].
The Respondent contended that the Applicant’s offending should be regarded as being very serious.[30]
[30] Ex 2, [24].
The Tribunal acknowledges the sentencing Court’s remarks about the Applicant’s expression of remorse and contrition, having basis to commence consideration of rehabilitation on release, his time in custody being more onerous, and that upon his release, “it may be that he will be unlikely to reoffend.”[31] However, the Tribunal considers the Applicant’s offending to be very serious; the supply of commercial quantity and large commercial quantity of prohibited drugs, is serious for multiple reasons, including the potential deaths of, and/or serious injury which could be caused to illicit drug users, the financial cost to users which can lead to offending to support one’s habit, the time and the cost involved in policing and controlling illicit drug circulation in the community. The Applicant played an active role in the ongoing supply of a commercial quantity of methylamphetamine and MDMA throughout Sydney.[32] The seriousness of his conduct is reflected in the custodial sentence that he received; the imposition of a custodial term upon an offender is considered to be the last resort in the sentencing hierarchy.
[31] Ex 12, 38.
[32] Ex 12, 34, 52.
The Applicant’s records also show that the Applicant has a number of traffic-related offences, including exceeding the speed limit by more than 10 kilometres per hour in December 2014, driving across dividing lines to do U-turn in September 2015, and in March 2015 for using a mobile telephone when not permitted.[33] Although those offences are less serious than the supply of prohibited drug offences, the Tribunal has taken them into account because traffic offences are serious as they involve potential injury and/or death to road users.
[33] Ex 11, 16-17.
The Applicant’s conduct in custody is relevant to this consideration. In oral evidence, the Applicant accepted that he was not the “best prisoner”.[34] He stated that he “urinated inappropriately … used drugs … wasn't listening to the officers.”[35] He stated that he used strips of “bupe” given to him by other inmates. He accepted that he failed a drug test in September 2019 and that in October 2019, corrections staff found a strip of bupe in his room.[36] The Applicant accepted that he failed a urine test in July 2020 because he used bupe,[37] and that in November 2020, he spent two days in the cells for possession of a drug.[38]
[34] Transcript, 67, [15].
[35] Transcript, 67, [25].
[36] Ex 11, 129.
[37] Ex 11, 129; Transcript 70, [5].
[38] Transcript, 70, [5].
There was an incident involving a fight between the Applicant and another inmate in December 2016, which resulted in the Applicant being placed in the cell for 2 days.[39] The information indicates that the Applicant ran into his co-offender and punched him. The Applicant said that:
“they started plotting against me, and they said, 'This guy has left Islam', and they started making certain allegations against me … and they beat me there. And later on, when the incident went to the authorities, once I was passing him, because I was angry, I got into altercation with him, and punched him”.[40]
[39] Ex 11, 129.
[40] Transcript, 75, [15].
In June 2018, the Applicant was found to be in possession of a weapon (handle of a paint roller)[41] which he said was in self-defence because he was beaten a few times.[42]
[41] Ex 11, 129; Transcript 75, [40].
[42] Transcript, 76, [5].
The Applicant accepted that on 10 June 2023, he was found in possession of a drug. The Applicant gave evidence that one of his co-workers who was leaving prison left cigarettes and marijuana with the Applicant. The Applicant hid the drug the lamp, and later the officers found it. He said that he put his hand up and said “it's mine”.[43] When asked to explain why he did not tell the officers that the marijuana was not his, he said “when I have obtained it, and I hide it myself, therefore it would have been best to admit, because then it would have been too much for the officers, and it would be working against me. So I pleaded guilty, and accepted the responsibility.”[44] The Tribunal is not persuaded by the Applicant’s explanations that the drugs were not his. In any event, if his evidence were to be accepted, this would indicate that as recent as June 2023, the Applicant was willing to hide illicit drugs in prison. When asked to explain why this incident was not mentioned in his statutory declaration to the Tribunal,[45] he stated that he forgot that he had told his lawyer and did not intend to hide this information.[46] The Tribunal is not convinced. This incident is recent and significant.
[43] Transcript, 70, [20]-[25].
[44] Transcript, 71, [40].
[45] Ex 3.
[46] Transcript, 72-73.
Although less serious than the offences for which he was convicted, the Tribunal is satisfied that a fair appraisal of the evidence supports a finding that the Applicant’s conduct in prison has been problematic, contrary to the Applicant’s contentions in his SOFIC that his disciplinary record in prison has been “commendable since 2020”, apart from one reprimand on 27^th July 2021 for unlawfully using the telephone.[47]
[47] Ex 1, [52].
On balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily in favour of refusal.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen 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.
The Direction contemplates that 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.[48] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[49] The Tribunal needs to consider the likelihood and consequences of further offending.[50]
[48] Direction 99 [8.1.2(1)].
[49] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[50] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
In the Applicant's SOFIC, it was argued that one needs to consider the Applicant’s circumstances, including his rehabilitation.[51] The Applicant contended that he has rehabilitated and is unlikely to engage in further criminal conduct.[52]
[51] Ex 1.
[52] EX 1, [41].
There is evidence before the Tribunal that the Applicant has been attending Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) in prison.[53] There is a letter confirming the Applicant’s evidence that he has been attending both AA and NA in prison.[54] During the hearing, he demonstrated a level of understanding of those programs commensurate with a person who has attended the programs. There is information dated 4 December 2020 that the Applicant has received positive case notes in relation to his engagement in education programs, and that he was in regular contact with psychology.[55] The Applicant has completed multiple TAFE and other courses, including Cleaning Operations, Warehouse Operations, Information, Digital Media and Technology, and Foundation Skills for Writing and Numeracy.[56]
[53] Ex 10.
[54] Ex 12, 323.
[55] Ex 12, 131.
[56] Ex 12, 282-298.
The Applicant has been on buprenorphine injections, but it is unclear when he commenced that medication. In his oral evidence, the Applicant said that he commenced on those injections in late 2020, but his recently provided medication history indicates that he commenced treatment in August 2023.[57] However, there is a Corrective Services Note of January 2021 recording that the Applicant reported to a psychologist that he was receiving buprenorphine injections.[58] There is also another reference in Corrective Services Note on 19 March 2021 that the Applicant is receiving buprenorphine.[59]
[57] Ex 9.
[58] Ex 11, 87.
[59] EX 11, 128.
The Tribunal is unable to resolve the inconsistent information but is satisfied on the cumulative evidence that the Applicant commenced buprenorphine injections in late 2020, as this is somewhat consistent with the Corrective Services Note of January 2021. The issue though is that there is limited evidence about whether buprenorphine injections are producing the desired results, or how long the Applicant would need to be on those injections, and whether he would require them if he is released into the community. In essence, there is no clinical evidence to confirm the efficacy of the buprenorphine injections and how the Applicant would manage if released in the community, with or without the buprenorphine injections.
As discussed earlier, the Applicant has failed drug tests whilst in prison and that in 2023 he was found in possession of marijuana and illicit tobacco. The Tribunal has some doubts but even if the Tribunal were to accept the Applicant’s account that it was not his marijuana, the Tribunal is persuaded by the Respondent’s submissions that:
“It should be of concern to the tribunal that the Applicant is prepared to hold someone else's drugs for them … One of the drivers of the Applicant’s risk of reoffending is his associations, and should be of concern that the Applicant continues to associate with and assist persons who possess illicit substances. It should also be of concern that the Applicant elected not to disclose these disciplinary offences in his statement to this Tribunal.”[60]
[60] Transcript, 97, [40].
The Tribunal heard evidence from four witnesses who also provided statements in support of the Applicant. Father El-Bakhoumi, Mr Nejad, Mr Hendawi, and Ms Barjestehmanesh all spoke highly of the Applicant and offered their support for the Applicant. It is noteworthy that Mr Hendawi has offered the Applicant a position in his barber shop if released. The Tribunal found all the four witnesses to be impressive and the Tribunal accepts the genuineness and authenticity of their willingness to do their best to assist the Applicant in terms of providing emotional, financial, accommodation, and employment support.
The Tribunal notes that the Applicant is eligible for parole on 21 May 2024,[61] and although the Applicant appears to be positive that parole would be granted, it would be inappropriate for the Tribunal to make that assumption. Even if parole were to be granted, any conditions imposed are not currently known, so the Tribunal does not know how any conditions would impact the risk of reoffending.
[61] Ex 11, 1-7.
Similarly and as discussed below, following the High Court’s decision in NZYQ,[62] and the commencement on 18 November 2023 of the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) (the Migration Amendment Act), it is premature to make assumptions about what actual visa conditions would be imposed in the Applicant’s case, on the Bridging (Removal Pending) Subclass 070 visa (the BV), and/or their impact, if any, on the risk of re-offending, as this would depend on the Applicant’s circumstances at the time of his release on parole.
[62] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ’).
Moreover, there is limited material, such as current expert evidence, in respect of the Applicant's substance misuse, treatment for drug addiction, and risk of recidivism. There is a pre-sentence report prepared by a community corrections officer in August 2018, which concluded that the Applicant presented as a medium risk of recidivism.[63] The report also refers to the Applicant’s commencement of methamphetamines and opium use since the age of 14, indicating that the Applicant’s substance misuse has been a long-term concern, which presents significant challenges to his recovery.
[63] Ex 11, 132.
In closing submissions, the Applicant’s representative argued that the Applicant found Christianity after his offending, and that he now has direction, as well as a community within the Church which supports his efforts to rehabilitate himself. The Applicant’s representative states that he “is not the same person when he committed the crimes … he accepts his guilt of all the offences for which he was convicted.”[64]
[64] Transcript, 88, [35].
The Applicant’s representative referred to the finding of the delegate who determined the protection visa application:
“I am satisfied that the applicant's behaviour could be viewed as an acceptance of Christianity. And that being a Christian, it has now become an essential part of his identity. It was apparent that he has genuinely embraced his new found friend, and desires to openly and freely practice Christianity on a regular and ongoing basis. The applicant has also been meaningfully employed in the prison system during his sentence.”[65]
[65] Ex 12, 178; Transcript, 88-89.
The Applicant’s representative argued that this is in favour of the Applicant's prospects of rehabilitation, as it indicates a “willingness to behave and occupy himself in a gentle manner”.[66]
[66] Transcript, 89, [5].
The Applicant’s representative relied on a number of judgments such Re Salazar,[67] Godley,[68] WKCG,[69] and Schuster-McFadyen.[70] The representative essentially argued that the Applicant will be strongly motivated to avoid any risk of further imprisonment or punishment and that “the Australian community could not be said to be intolerant of any risk.” The representative further argued that:
“…the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a permanent visa with the applicant knowing that any infringement would likely result in a cancelation of that visa.
Based on the above, it is submitted that the applicant constitutes a zero to low risk to the Australian community that he is not a danger.”[71]
[67] Re SalazarArbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 (‘Re Salazar’).
[68]Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 (‘Godley’).
[69] WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (‘WKCG’).
[70] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 (‘Schuster-McFadyen’).
[71] Transcript, 91, [35]-[40].
In closing submissions, the Respondent correctly pointed out that WKCG relates to Article 33(2) criteria in the 1951 Refugee Convention, and the meaning of 'danger to the Australian community' within the framework of s 36 of the Act and has no bearing on any of the considerations set out in Direction 99, which is what needs to be applied in this case. In relation to the citation of Godley, the judgment relates to the concept of good character, but in the current context, the Tribunal is not required to consider whether the Applicant is or is not of good character, and that the appropriate tests and considerations are those set out in s 501 of the Act, and Direction 99. It is not in dispute that the Applicant does not pass the character test.
The Respondent submitted that further offending of the kind that the Applicant has been convicted of, could result in serious physical, psychological, or financial harm to the Australian community.
The Tribunal acknowledges the Applicant’s efforts in furthering his skills and in addressing his substance misuse, as well as the support he has from his friends and Church community. However, on the cumulative evidence, the Tribunal is satisfied that the extent of rehabilitation achieved is questionable when considered in the context of the Applicant’s conduct in prison, including hiding illicit drugs as recent as June 2023. The Tribunal observes that in a Case Note of Corrective Services of 14 June 2023, the Applicant was described as being “heavily involved in the movement of contraband in the centre … it does appear that he is in the middle of significant contraband issues at the centre”.[72]
[72] Ex 11, 117.
The Tribunal accepts that the Applicant has, in his written and oral evidence, expressed a degree of remorse. The witnesses also expressed that remorse on his behalf. However, his acceptance of culpability has not been unequivocal. There is evidence that the Applicant appeared to minimise his offences, claiming that he was set up by the police.[73] The Tribunal gives some weight to the Applicant’s expressed remorse, but is guarded to conclude that this means that he will not re-offend.
[73] Ex 11, 133.
Having regard to the cumulative evidence, the Tribunal is satisfied that there is a real and unacceptable risk of further serious offending.
For those reasons, the protection of the Australian community consideration weighs heavily in favour of refusal.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[74]
[74] Direction 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[75]
[75] Direction 99 [8.2(3)].

There is no evidence in this case that the Applicant’s conduct relates to family violence.
The Tribunal gives this consideration neutral weight.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that 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. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[76]
[76] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant does not have immediate family members in Australia. He has however established ties within the Australian community, including friendships with persons who are Australian citizens and/or permanent residents. He has provided documents in support from individuals who have expressed support. Four witnesses gave evidence expressing their support. One of the witnesses has offered the Applicant a position in his barber shop, upon his release. Another witness noted that he has close contacts who could assist the Applicant in finding work.[77]
[77] Ex 4, [5].
The Applicant also has a potential employment opportunity with his previous employer.[78] The Tribunal acknowledges that the Applicant has undertaken a number of courses to improve his skills and employment potential. He has the support of his Church community and the Applicant intends to continue his involvement. He intends to volunteer and support AA and NA.[79] He has a sponsor allocated to him upon release.[80] Mr Peter Fleming, Registered Nurse, expressed the view that if given the opportunity, the Applicant would have strong support from the Sydney NA community.[81]
[78] Ex 3, [16].
[79] Ex 3, [18].
[80] Ex 3, [18].
[81] Ex 3, Attachment ‘C’.
Prior to his incarceration, the Applicant worked in various positions, including working as a painter and a kitchen hand.
The Applicant has been in Australia since June 2013, having arrived as an adult aged 21 years. The Applicant did not spend his formative years in Australia and it is noteworthy that his offending commenced about three years after his arrival.
On balance, the Tribunal gives this consideration some weight against refusal of the visa.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[82]
[82] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant does not have any children of his own, and there is no evidence of any minor child being impacted.
The Tribunal gives this consideration neutral weight.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that 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.
The Direction refers to visa refusal being potentially 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.[83]
[83] Direction 99 [8.5(2)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[84]
[84] Direction 99 [8.5(3)].
In his SOFIC, the Applicant contended that the expectations of the Australian community in relation to an applicant in respect of whom Australia has non refoulement obligations:
“…would not expect an applicant be refused a protection visa on character grounds for non-violent offences that have been described by the primary judge as below mid-range.
The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re-offend. What rehabilitation a person has undergone is relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.”[85]
[85] Ex 1, [c]-[d].
In closing submissions, the Applicant’s representative contended the following:
“Australian community could not be said to be intolerant of any risk. I submit that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a permanent visa with the applicant knowing that any infringement would likely result in a cancelation of that visa.”[86]
[86] Transcript, 91, [3]-[35].
The Respondent submitted that the Applicant has “committed serious offences and poses an unacceptable risk of further offending." Furthermore, the Respondent argued that the Australia community “expects to be protected from such a person and that the applicant’s visa application should be refused accordingly.”[87]
[87] Ex 2, [43].
In response to the Applicant’s submissions, the Tribunal referred to the Federal Court of Australia’s decision in FYBR.[88] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[89] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[90]
[88] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[89] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[90] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 of Direction 65 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[91] that it is not for the decision-maker to make his or her own assessment of the community expectations,[92] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[93] In essence, the judgment is authority for the proposition that it is not the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[94]
[91] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[92] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[93] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[94] FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Tribunal is satisfied that the Applicant’s criminal conduct is serious and it involves the supply of a prohibited drug, in a commercial and a large commercial quantity. The Tribunal is satisfied that the Australian community expects that the Australian Government should refuse the visa.
The Tribunal gives this consideration significant weight in favour of refusal.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that 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 in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to 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).
“Non-refoulement obligation” is not confined to the protection obligations to which s 36(2) of the Act refers.[95] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[95] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
In the Respondent’s SOFIC, the Respondent accepted that this consideration weighs in favour of not refusing the visa.[96] The Respondent accepted that if allowed parole, the Applicant may be subject to prolonged detention. Those submissions were made prior to the High Court’s decision in NZYQ.[97]
[96] Ex 2, [44].
[97] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ’).
Impact of NZYQ
Following the hearing, on 8 November 2023, the High Court handed down a judgment in NZYQ by pronouncing orders. The Court declared that, by reason of there being and continuing to be no real prospect of the removal of NZYQ from Australia becoming practicable in the reasonably foreseeable future:
·NZYQ’s detention was unlawful as at 30 May 2023; and
·NZYQ’s continued detention is unlawful and has been since 30 May 2023.
A writ of habeas corpus was issued requiring the defendants to release NZYQ forthwith.
On 13 November 2023, the Tribunal requested the parties to provide submissions relating to NZYQ. The submissions are summarised below.
Applicant’s submissions dated 15 November 2023
The Applicant made the following submissions:
·There is no real prospect of the removal of the Applicant from Australia becoming practicable in the reasonably foreseeable future.
·The Applicant is eligible for parole on the 21 May 2024. If and when parole is granted, the Applicant can no longer be transferred to immigration detention and must be released forthwith, consistent with NZYQ. The legal consequences of NZYQ and its impact on paragraph 9.1.1 of the Direction means that the Applicant cannot remain in immigration detention which favours the Applicant.
·A media release by the Minister on 10 November 2023 stated that the Government is considering the implications of NZYQ who has been released, and that other impacted detainees will be released, subject to appropriate visa conditions.
·In the event the decision of the delegate is affirmed by the Tribunal, the Applicant will be an impacted individual. In coming to a decision, the Tribunal “should not speculate what type of visa may be granted in the future to the applicant as an impacted individual and what conditions will be imposed.” In light of NZYQ, the Applicant will be released in the community on parole even if the visa is not granted.
·The delegate’s decision should be remitted so the visa can be granted, having regard to the decision in the NZYQ case, taking into account that the Applicant is a person whom Australia has protection obligations. Australia’s non-refoulement obligations preclude the Applicant’s removal to Iran. If the Applicant is not granted the visa, he must be granted another visa to remain lawfully in Australia out of detention. Temporary visas (including bridging visas) are not reasonable for the Applicant as these visas are not designed for individuals found to be refugees; bridging visas are only designed for particular events, such as the approval of a substantive visa or pending removal from Australia. The Applicant cannot be removed from Australia.
·The Tribunal must acknowledge that the Applicant will be in Australia for an indefinite period and most likely for the rest of his life. He therefore should be granted a stable long term visa status, such as a permanent residence visa. Anything less than a permanent visa will be “punitive”, as the Applicant would be deprived of many benefits from a permanent visa. Any other kind of visa other than a Safe Haven visa would be “punitive, unfair, and unreasonable”. The Applicant has shown remorse and is now rehabilitated and there is “no logical reason for the applicant to be granted an inferior visa”. It is therefore beneficial to grant a permanent protection visa to the Applicant, so that he integrates himself into the Australian community.
·A permanent visa would be the best incentive to the Applicant to never re-offend as he would be aware this could lead to the cancellation of his permanent visa and he “will be extremely indebted to society for giving him a chance to rebuild his life as an Australian permanent resident, having access to health care, education and employment opportunities as any other permanent resident of Australia.”
·In case of an affirm, ss 48 and 48B of the Act preclude the Applicant from applying for any type of visa in Australia, and no reliance can be placed upon the Minister exercising discretion under section 48B at a future time in favour of the Applicant.
Respondent’s submissions dated 17 November 2023
In summary, the Respondent made the following submissions:
·NZYQ may be relevant as one of the other considerations to be considered under paragraph 9.1 of the Direction. The Respondent accepts that the duty to remove under s 198(6) of the Act is engaged in relation to the Applicant. The Applicant is the subject of a protection finding, for the purpose of s 197C(3) of the Act concerning Iran, and there is no real prospect of the Applicant’s removal to a third country.
·The Applicant is currently detained in prison serving a sentence and he will not be eligible for parole until 21 May 2024. As such, regardless of the outcome of this review, he will not be released into the community until at least 21 May 2024.
·Consistent with NZYQ, there is no real prospect of the Applicant’s removal from Australia being practicable in the reasonably foreseeable future. In case of a set aside by the Tribunal and substitution of a decision not to refuse the visa, pursuant to s 501(1) of the Act, it would then be up to the Minister to grant the visa. In the event that the Minister grants the Applicant a visa on remittal, his visa status will change to a Safe Haven Enterprise (Class XE) visa. In case of an affirm by the Tribunal, the Applicant will be issued the BV. The timing of the Applicant’s release into the community will not be affected by the Tribunal’s decision.
Submissions in reply by the Applicant dated 20 November 2023
The submissions contended that:
·The Tribunal has discretion to “reverse the Delegate's decision even if the character test is not satisfied” and that “it is difficult to see the basis on which the Minister could refuse the visa application on remittal.”
·The BV is a bridging visa pending removal and requires an applicant to pass the character test. The BV is “inherently inferior to the Safe Haven Enterprise visa … is a temporary [visa] and may be invalid as it would be granted for an improper purpose where the Minister acknowledges removal is, at present and for the foreseeable future, impossible”.
·If the decision is not remitted and the Applicant is granted a BV with onerous conditions, this could be considered “'punitive' and or 'extra-judicial' punishment”.
·At this stage, the government has not passed a new bill that proposes a mechanism for the Minister to grant the BV to persons for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. Accordingly, there is no basis for the Minister to grant the Applicant the BV.
Further submissions by the Applicant dated 20 November 2023

The Applicant’s representative referred to his earlier submissions that at this stage, the Australian government has not passed a new bill that proposes a mechanism for the Minister to grant the BV. The Applicant’s representative asked the Tribunal to “ignore” those submissions on the basis that after sending the above submissions, it was brought to the attention to the representative that legislation was enacted on 18 November 2023.
The Applicant however maintained the following contentions:
·The Tribunal has “discretion to reverse the Delegate’s decision even if the character test is not satisfied”.
·It is “difficult to foresee the basis on which the Minister could refuse the visa application on remittal”.
·If the decision is not remitted and the Applicant is granted “an inferior visa such as a bridging visa with onerous conditions this would be ‘punitive’ and also ‘extra-judicial’ punishment”.
Consideration
It is correct that on 18 November 2023, the Migration Amendment Act commenced. In summary, the Migration Amendment Act amends the Act and Migration Regulations 1994 (Cth) to ensure that non-citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future, and who are therefore not capable of being subject to immigration detention under subsections 189(1) and 196(1) of the Act, are subject to appropriate visa conditions on any bridging visa granted to them following release. The amendments are in response to NZYQ. The Migration Amendment Act creates a number of criminal offences relating to non-compliance with mandatory visa conditions for the BV holders, including monitoring and other conditions, such as requiring the non-citizen to remain at a specified address, a curfew, and wearing monitoring devices. Breach of the visa conditions has significant outcomes including a conviction, and a mandatory one-year term of imprisonment.
It is not in contention that the Applicant is the subject of a protection finding.[98] In a decision dated 2 March 2021, a delegate of the Minister who assessed the Applicant’s protection claims concluded that there is a real chance that the Applicant would draw the adverse attention of the Iranian authorities and would be persecuted in Iran in the “reasonably foreseeable future for the reason of having genuinely converted to Christianity and his intention and desire to continue to practise Christianity.” The delegate found that “there is a real chance the applicant would be forced to renounce his faith or face arrest and imprisonment, during which time he may be seriously physically assaulted, amounting to serious harm”.[99]
[98] Ex 12, 176-193.
[99] EX 12, 181.
On the evidence, the Tribunal is satisfied that due to his conversion to Christianity from Islam, and genuine intention to continue to practise the Christian faith, there is a real chance that he would be seriously harmed, if returned to Iran. The Tribunal is satisfied that the Applicant is covered by a protection finding. The Tribunal accepts that the Applicant will not be eligible for parole until 21 May 2024 and as such, irrespective of the Tribunal’s decision, he will not be in the community until at least that time. The duty to remove the Applicant as soon as reasonably practicable from Australia pursuant to s 198 of the Act applies. However, s 197C(3) of the Act also applies to the Applicant. As such, the Applicant cannot be removed to Iran and removal must be to a third country. The Respondent accepted and the Tribunal finds that the Applicant cannot be removed to Iran due to the operation of s 197C(3) of the Act, and that there is no real prospect that it will be practicable to remove the Applicant in the reasonably foreseeable future to a third country.
The Tribunal is satisfied that following NZYQ, as the Tribunal is affirming the refusal decision, because there is no real prospect that it will be practicable to remove the Applicant in the reasonably foreseeable future, the Applicant would be issued with the BV, and the timing of the Applicant’s release into the community will not be affected by the Tribunal’s decision.
The Tribunal acknowledges the Applicant’s submissions that the BV is “inherently inferior to the Safe Haven Enterprise visa” and that the BV has onerous conditions which could be considered “'punitive' and or 'extra-judicial' punishment”. It is correct that the BV is a temporary visa, but to suggest that it is inferior, with respect, is misconceived. In order to be granted any visa, an applicant must meet the relevant criteria. The BV will permit the Applicant to remain lawfully in Australia until his status is resolved, and while there are likely to be conditions, this needs to be considered in the context of the Applicant who has committed serious drug-related offences, and there remains a risk of re-offending. To suggest that the BV conditions are onerous, punitive and extra-judicial, ignores the overarching principle in the Direction, namely that non-citizens who have engaged in criminal or other serious conduct “should expect to be denied the privilege” of coming to or staying in Australia.[100] Moreover, as outlined earlier, protection of the Australian community is a primary consideration in the Direction.
[100] Direction 99 [5.2(2)].
In essence, as the Applicant is the subject of a protection finding, and cannot be removed to Iran, upon the grant of parole, he is likely to be granted the BV with conditions, and as such, he would not be detained for a prolonged or an indefinite period.
Although the Applicant would be granted the BV, arguably and for some time, he could face an uncertain migration status. As such, the Tribunal gives this consideration some weight against refusal.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
For the above stated reasons, the Tribunal has found that the Applicant cannot be removed to Iran. As such, this consideration is not relevant.
The Tribunal gives this consideration neutral weight.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[101]
[101] Direction 99 [9.3].
There is no evidence of the impact of the decision on victims, and as such, the Tribunal gives neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has been offered a position by Mr Hendawi in a barber shop upon his release. Mr Hendawi gave evidence that he would teach the Applicant hairdressing skills. Mr Nejad, who provided a Statutory Declaration and gave evidence, indicated that he has a number of close business contacts who can offer employment to the Applicant.
The Tribunal also accepts that the Applicant could have a further employment opportunity with his previous employer, Mr Giam.[102] The Tribunal accepts the genuineness of Mr Hendawi’s offer of employment and Mr Nejad’s willingness to assist. However, on the evidence, the Tribunal is not satisfied that a decision in this case would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
[102] Ex 3, [16].
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The Tribunal recognises the significance of a visa refusal under s 501(1) and that the process is not intended to be a mathematical, or a simple aggregation of the relevant considerations. On balance, although there are aspects against refusal, the aspects in favour of refusal outweigh those against. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, as well as the expectations of the Australian community, weigh heavily in favour of refusal. The considerations against refusal, including strength, nature, and ties to Australia, and the legal consequences of the decision, do not outweigh the considerations in favour of refusal.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to refuse to grant the visa under s 501(1) of the Act.
DECISION
The Tribunal affirms the decision under review.

127.

128. I certify that the preceding one-hundred and twenty-six (126) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate

Dated: 24 November 2023

Date of hearing(s):

6 and 7 November 2023

Solicitor for the Applicant:

Mr B Hai, Phillip Silver & Associates

Solicitor for the Respondent:

Mr K Sypott, Australian Government Solicitors

Date of hearing(s):	6 and 7 November 2023
Solicitor for the Applicant:	Mr B Hai, Phillip Silver & Associates
Solicitor for the Respondent:	Mr K Sypott, Australian Government Solicitors