SYLN and Minister for Home Affairs (Migration) - [2018] AATA 4408

SYLN and Minister for Home Affairs (Migration) [2018] AATA 4408 (23 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5121
Re:SYLN
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Rayment QC
Date:23 November 2018
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister for Home Affairs dated 31 August 2018 to refuse to grant the applicant a Protection (Class XA) visa and remits the matter for reconsideration with a direction that the discretion under s 501(1) of the Migration Act 1958 (Cth) is to be exercised in the applicant’s favour.
............................[SGD]..........................
Deputy President Rayment QC
CATCHWORDS
MIGRATION – best interests of infant children require that they be reunited with father – non-refoulement obligations owed in relation to applicant – consideration of s 197C of Migration Act – practical consequence of affirming decision is that applicant will likely remain in indefinite detention – good government – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) ss 189, 196, 197C, 198, 499, 500, 501, 501CA
CASES
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2107) 248 FCR 456
BHKM and Minister for Immigration and Broder Protection (Migration) [2018] AATA 3
Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; (1979) ALR 307
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FTYC and Minister for Immigration and Border Protection [2018] AATA 20
Jagroop v Minister for Immigration and Border Protection [2015] FCAFC 48; (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41
Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
R v Secretary of State for the Home Department; Ex parte Venables [1997] UKHL 25; [1998] AC 407
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction no.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – cll 6.3, 11, 12.1, 12.2
REASONS FOR DECISION
Deputy President Rayment QC
23 November 2018
INTRODUCTION

The applicant was refused a protection visa by the Minister’s delegate in the exercise of the general discretion conferred on the Minister by s 501(1) of the Migration Act 1958 (the Act) and that decision is before me for review. The discretion is conferred by the Act if the applicant does not pass the character test as defined in s 501 of the Act.
The applicant does not pass the character test because he was sentenced to a term of twelve months’ imprisonment in 2003, confirmed on appeal in 2015: see s 501(7) of the Act. In very unusual circumstances mentioned below, he has not actually served that sentence, but that does not matter under s 501 of the Act. What is important is that he was sentenced to a term of imprisonment.
As will be familiar to most readers of this decision, the discretion is to be exercised in light of Direction 65 made under s 499 of the Act, and that Direction, to the extent to which it is consistent with the Act, binds decision-makers including this Tribunal. In the second section of these reasons I will discuss the provisions of Direction 65 and the detailed applications of the primary and other considerations arising insofar as they are relevant.
This case is a tragic one, not only for the applicant but for his infant children, as will appear below. The children themselves now have protection visas, and they feel a natural need to live with their father in the community. The applicant has already been in detention for some six years, and if the reviewable decision is affirmed, the practical result will be that he is likely to remain there indefinitely. He is sixty years of age, and is owed protection obligations, and as a result of government policies referred to below, despite s 197C of the Migration Act, unless action is taken in this Tribunal or the courts, he may remain there indefinitely.
In Part 1 of these reasons I will make findings, insofar as the evidence permits about the relevant facts concerning the applicant and his two marriages and the children of those marriages. Some evidence has been led by the respondent about allegations of misconduct by the applicant in detention, and questions of principle arise about the findings which may be made concerning those allegations.
In Part 2, I will draw attention to some matters concerning Direction 65 and discuss some matters arising from the fact, which the respondent admits, that protection obligations are owed not only to the children, but also to the applicant himself. I will also find it necessary to consider the remarks made in the Direction about indefinite detention, which raises some questions of general importance, including the role played by s 197C of the Act and the decision in DMH16 v Minister of Immigration and Border Protection [2017] FCA 448.
In Part 3 of these reasons I will explain the reasons for my view that the correct and preferable decision is to set the reviewable decision aside.
PART 1 - BACKGROUND
The applicant was born in 1958 and married for the first time in Iraq in 1985. He and his then wife had four children of whom three were boys. They are now aged in their late twenties and early thirties. As a Shia Muslim living under the regime of Saddam Hussein he encountered great difficulties with Sunni Muslims including those working for the regime’s secret police. The applicant’s father was kidnapped and when in early October 1999 his assistant in the business was also kidnapped by military groups, he fled Iraq. That led him to Australia for the first time.
The applicant first arrived in Australia as an undocumented maritime arrival, having travelled from Iraq via Syria and Indonesia. He sought refugee status on arrival. He stated that he had employed a paid people smuggler to bring him to Australia. He was taken into detention. On 24 May 2000 he was granted a temporary protection visa. He then applied for a further protection visa.
The applicant alleged that in Iraq he would face persecution because he had refused to sell his business to a member of Saddam Hussein’s secret police which would generate an anti-government profile for him. He also alleged that his Shia religious background, illegal departure from Iraq and the act of seeking refugee status in Australia would lead to persecution in Iraq. Those allegations led the Minister to grant him a temporary protection visa.
Until 2003, nothing adverse to the applicant is known after he was released from detention and became the holder of a temporary protection visa in 2000. In 2003, he committed crimes which were later dealt with in court.
In the period 2002 to 2003 he applied for his children to join him in Australia and apparently understood that his application was unlikely to succeed. He worked in the community, and served as a security guard during the Olympic Games in 2000.
On 7 January 2003, the applicant was charged with three counts of having a false instrument with intent to use. That charge was heard in May 2013 and, apparently after a hearing at which he gave evidence, he was convicted at the Local Court in Fairfield. The applicant was represented and assisted by an interpreter. He was sentenced to 12 months imprisonment with a non-parole period of 9 months. He appealed on severity and was given bail pending the appeal. The false instruments were three false credit cards and two foreign photo ID cards. The applicant did not use the cards and was charged with intending to do so.
The activity was of course serious. The applicant was convicted after a hearing. I have only scant records of the hearing. The applicant gave some evidence suggesting that he was innocent of the charges and that the credit cards and other documents were not his. He also disputed other evidence given by police officers in 2003. His memory of events was not good, and I am not prepared to act on his denials of guilt.
On his behalf it is submitted that he was lonely and depressed, missing his wife and children, and worried about their safety in Iraq, because of the then deteriorating situation in Iraq. I consider there is potentially something in this.
The main problem about deciding that the acts of 2003 mean that the Australian community is at risk of harm from him, is that the offending is now some fifteen years ago, and his present circumstances are very different. He was then alone here. As will appear, he now has five sons here, and has every incentive not to reoffend. All five sons and he himself are owed protection obligations and further offending may quickly lead to action again being taken against him by the respondent. He has been in detention for six years, and knows that he would face the same prospect again.
In April 2003 the Saddam Hussein regime fell, and US troops entered Iraq, intending that his regime should fall, and searching for weapons of mass destruction. Unrest in Iraq continues to this day.
On 1 and 2 August 2003 the applicant was charged with common assault, driving with high range prescribed content of alcohol, driving with a licence expired less than two years, and breaking and entering a building.
On 1 October 2003 he was apparently convicted in absentia of those offences. More detail has emerged about the punishment for those offences in 2015, as discussed below.
On 20 November 2003, while still on bail, he left Australia using a friend’s passport, whether borrowed or purchased, and returned to Iraq, via China where he met his brother to discuss the prevailing circumstances in Iraq. Escaping Australia in those circumstances without facing an appellate court, and while on bail, is obviously very serious misconduct. That conduct, at least to the extent that the applicant failed to appear in breach of the terms of his bail conditions in 2003, came before the local court in 2015, as appears below.
The applicant’s circumstances today, with five of his six children living in Australia, are obviously very different, when one considers his future, as distinct from what he did in 2003. There seems to be no doubt that a significant part of his motivation for returning to Iraq in 2003 was because of concerns about his first family.
The applicant returned to Iraq on 30 November 2003 using the other person’s passport and then discovered that his first wife had divorced him and had remarried. His four children were then in their teens.
Following his return to Iraq he went back into his textile business and in 2005 he himself remarried. There were then born his fifth and sixth children, in 2006 and 2007. It is the interests of those children which must be taken into account as a primary consideration in this proceeding.
In May 2009 the applicant and one of his sons by his first marriage were assaulted and kidnapped in Iraq and several months later in 2009, he fled Iraq again to Turley, taking with him all of his sons, including the two infants. His daughter elected to return to Iraq where she still lives with her husband.
In 2009 or subsequently the applicant was divorced from his second wife, who remarried. She and her new husband now have other children living overseas, and the two young sons by his second wife have no contact with her. The only parent they have known since 2009 is the applicant. They now also have a close relationship with their elder three half-brothers.
In 2009, in Turkey, the United Nations High Commissioner for Refugees (UNHCR) found the applicant and his five sons to be refugees. By this time the applicant’s first wife had emigrated to Australia and although in 2009 the applicant and his five sons were accepted for entry to the United States, since his elder three sons wished to go to Australia to be reunited with their mother, they decided as a family to come here. Presumably, the applicant made this decision even though he must have known that he faced the prospect that he might be imprisoned because of the 2003 convictions.
In Turkey, an application was made by the applicant and all five sons for visas to allow them to enter Australia.
In 2012, having had no response to his visa application, the applicant decided to come to Australia and to bring his two youngest sons, then 5 and 6, without a visa and they travelled to Malaysia, then Indonesia. His submissions suggest that he took the hard decision not to bring his elder sons with him, because he could not afford what he anticipated would be the additional cost of paying for passage of the elder sons to Australia. A people smuggler was again engaged by the applicant for himself and his two infant sons, and the vessel was apprehended at sea and the applicant and his infant children were taken by Navy vessel to Christmas Island with other passengers on the vessel. The vessel of the people smuggler was sunk at sea by the Navy.
By December 2012, the three arrived here as unauthorised maritime arrivals. The applicant again used his friend’s passport but disclosed to Border Protection officers that he had previously arrived here under another name in 1999, and disclosed the name under which he had previously arrived, and that he then had a temporary protection visa. The applicant and his two youngest sons were taken into immigration detention at first on Christmas Island and later at Leonora in Western Australia and then at Blaydin in the Northern Territory for three years until 2015.
The applicant has remained in detention ever since, but his two infant children were released from detention in 2015.
While the applicant remained in detention, his three older sons, who had stayed in Turkey, learned in 2013 that their application for humanitarian and refugee visas had been accepted by Australia and they came here lawfully. All in their twenties and early thirties, they now live and work in this country and, in company with others called on behalf of the applicant, have given witness statements in this case. The applicant’s first wife also has a Refugee and Humanitarian (Class XB) visa. She now lives in Sydney with the applicant’s three elder sons. They are extremely close to their father and visit him at Villawood on average twice a week, usually with their two younger brothers.
In 2015 the applicant discovered one of his two infant sons was being sexually abused by a male teenage detainee. The applicant entered the room in which they were all residing and found one of his sons undressed from the waist down, with another, older boy about to penetrate the son, with his penis erect. He called a Serco officer who confronted the boy and involved the local police. The boy was later taken into custody in the Northern Territory and remained in custody for some three months when he was put on trial. The applicant’s legal representative informed the Tribunal that the boy was acquitted at trial. There is no information about how that could have happened. The respondent has not suggested to the applicant that this very serious event did not occur as he has described it and the Serco officer, who would have had significant knowledge of the events has been identified by the applicant and not called by the respondent.
Subsequently, the applicant learned from a carer who assists the boys at their accommodation that the applicant’s other infant son had told her that he also was repeatedly sexually abused by the same teenage detainee, a matter previously unknown to the applicant. This came as a great shock to the applicant and caused him much additional distress.
Both of the applicant’s children, who are now aged 11 and 12 were severely traumatised by the sexual abuse. They are given counselling once a week to seek to remediate the effects of the trauma. Nevertheless, each still wets the bed at night time. This is one of the reasons why the applicant wants to be with his two younger children, and why they wish to be in his care. From detention, the applicant has made every effort to care for his children, as has been confirmed to me by a lady who has known in detail about the contact he has with his children for the last three years. The carer is able to communicate with the applicant in Arabic, and accompanies the children to Villawood on their regular visits to Villawood.
They go there three times a week, on Tuesdays, Thursdays and Saturdays, except that every second Thursday they cannot go to Villawood because they see their psychologist.
The applicant has bought mobile phones for the children and rings them by facetime at the accommodation three times daily, in the morning, in the afternoons after school, and in the evenings before they go to bed. He is involved with all decisions relating to them and gives them advice, and keeps abreast of all that they do.
To return to the narrative about the offences of 2003, in the year 2015 when the applicant was brought to Villawood from Darwin, he was brought before the Courts to be dealt with on appeal from the 2003 sentences. He first came before Judge Sides, who has a reputation as a very experienced criminal judge, and who was once the senior public defender in NSW.
The applicant was represented on the appeal on the “false instrument” convictions. He did not give evidence. The only offences with which Judge Sides was concerned were the “false instrument” offences.
The applicant had by then spent three years in detention and that fact was clearly taken into account by the judge. I have not been provided with any transcript of what occurred before the judge but his orders of 18 August 2015 make his intention clear. He varied the order for imprisonment so that it commenced on 15 August of the previous year, 2014. That appears to be analogous to dealing with the applicant on the basis of “time served” and to involve treating immigration detention as if it were custodial detention.
The applicant then came before the Fairfield Local Court nine days later to be dealt with on each of the other 2003 offences, including that of failure to appear in 2003 in breach of the bail undertaking. On each of the other 2003 offences, the applicant was dealt with by way of bond, and in relation to the use of an expired licence he was fined $400. On the offence of failing to appear in accordance with the bail undertaking, he was convicted with no other penalty, and on the PCA offence he was disqualified for periods which have expired during his subsequent detention.
The result is that so far as the criminal law is concerned, he has now been dealt with on each of the 2003 offences, including his breach of bail undertaking. But for his immigration detention he would now be at liberty in the community.
There are several other matters that need to be mentioned next.
In the first place, the respondent has tendered written materials of Serco recording complaints made against the applicant by other detainees while he has been in detention since 2012. The complaints were never made the subject of court proceedings and the reviewable decision notes that “all such incidents are deemed closed with none of the allegations escalating to formal criminal charges.” The applicant denied the veracity of each such complaint and was not cross-examined to suggest that they had substance. The respondent has also tendered some correspondence from the Northern Territory Department of Children and Families, which I found to be very vague and could cover a range of allegations made by the Department against the applicant, ranging from allegations of neglect to much more serious possible allegations. Nothing was put to the applicant in cross-examination on those letters and I put them to one side. If some serious allegation against the applicant was intended, it is quite contrary to evidence which has been placed before me. If such allegations were to be relied upon before me they would require convincing evidence and I do not draw anything adverse to the applicant from the letters.

There was one allegation about conduct in detention relating to damage to Serco property on 19 December 2017 which the applicant does not deny. It was on that day that Ms Battisson who appeared before me for the applicant told him that the respondent’s department had agreed to grant protection visas to the two children, but denied his application for the same visa. Ms Battisson stated that she could hear the distress and anguish in the applicant’s voice. His reaction on that day cannot lead to findings about his normal behaviour.
In the early days of this Tribunal it was the practice of the department to lead evidence if it desired to suggest that the Tribunal should find that matters not mentioned in remarks on sentence by a judge should be taken into account by the Tribunal. Thus, in Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, evidence was called by the Minister in confidential session from a police officer, and the legal representatives of the applicant were not permitted to inform the applicant of its content. In that decision, Brennan J held at [58] that evidence raising only a suspicion that the applicant had engaged in more serious misconduct than that for which he was convicted was an insufficient basis for any finding in this Tribunal. His Honour made reference to the need to provide procedural fairness to the applicant and referred at [40] to what was established in Briginshaw v Briginshaw (1938) 60 CLR 336 at [362] and Rejfek v McElroy (1965) 112 CLR 517 at [519]. Those comments were made since deportation, which was in issue in Pochi had very serious consequences for the applicant. No less serious consequences are involved in these proceedings for the applicant and his infant children.
Pochi was taken on appeal by the Minister: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41. The Full Court (Smithers Evatt and Deane JJ) unanimously held that the general principles of fairness and common sense considered appropriate to the case stated in general terms by Brennan J for the guidance of members of the Tribunal in the future performance of their functions involved no error of law.
Deane J with whom Evatt J agreed decided that what was said by Brennan J as to the need for any conduct alleged against Mr Pochi as a reason why he should be deported to be proved, not merely suspected, was an indication by his Honour to members of this Tribunal as to how such matters should be dealt with. Deane J added that the principle in question did bind members of the Tribunal as a matter of law. Deane J observed at [15]: “In my view, the Tribunal was bound, as matter of law, to act on the basis that any conduct alleged against Mr Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had.”
When I apply those tests to the evidence of complaints by other detainees which has been placed before me, I am unable to be satisfied that the complaints were correct. The organisation to which the complaints were made, Serco, has not been asked to provide to the Tribunal details of its own enquiries. Subsequent to the date of the complaints Serco provided to the applicant a Certificate of Appreciation “in recognition of your support to Serco staff”. The giving of that certificate is not something that one would expect to be done if Serco believed the complaints to have substance.
I heard evidence, which I accept, from a carer who looks after the children and who has met the applicant often in the last three years when the children visited him at Villawood to the effect that he is a very loving father who shows love and affection to them, contacting them multiple times. She says that the two children love him dearly, and that she has found the applicant to be accommodating and respectful to all staff members. She said that the children pray for their father to get a visa so they can have a normal family life. She said that the applicant has showed his gratitude to her for taking care of the children.
I have written evidence from each of the children in which they express a strong desire to live with their dad and lead a normal family life with him. They sat beside him in the Tribunal room, leaning close to him.
The elder sons each state that their father is a very good dad and has looked after them in Iraq. I accept that the applicant is regarded by his male children as a good father, and has behaved towards them as such. He desires above all else to participate in the lives of his two youngest sons during the coming years, to do what he can to help with their trauma and general well-being and to see their education completed, if possible to a tertiary level.
The Immigration Assessment Authority has found that the applicant and the two young children are owed protection obligations and that led the respondent to grant protection visas to the two younger children last year. I do not understand the respondent to contest that the applicant is entitled to protection obligations under the Refugee Convention.
PART 2 – DIRECTION NO. 65
Certain principles are important to be borne in mind about Direction 65 before its precise terms are referred to.
In the first place, the general function of this Tribunal is to reach the correct or preferable decision, including, in appropriate cases, to re-exercise the discretion. A major touchstone of the function of this Tribunal on a merits review is to exercise the discretion consistently with the dictates of good government.[1] This was discussed by Smithers J in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; (1979) ALR 307 at [355] in the following terms:
It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.
[1] Some other references to the good government principle are collected in BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3 at [56]-[62].
Keifel J with whom Crennan J agreed approved that statement in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [327].
In the second place, the direction, being addressed to decision-makers exercising a discretion conferred in general terms by the Act, must be understood against the background of what Gleeson CJ described as a fundamental principle of administrative law[2], adopting the description of it by Lord Browne-Wilkinson in R v Secretary of State for the Home Department; Ex parte Venables[1997] UKHL 25; [1998] AC 407 at [496]-[497]:
When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future ... By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

[2] See Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at 286-287.
These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases ... But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful.
The applicability of that principle in relation to Direction 65 was recognised by the Full Federal Court in Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 and other cases which have considered the Direction. For that reason, the Direction describes itself as giving guidance and describes the considerations which it authorises and directs a decision maker to refer to as including any other matter which is relevant, that is, whether or not mentioned in the considerations described as mandatory.
Discussing the predecessor to Direction 65 in Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) FCR 562, Perry J wrote:
[80] Nonetheless, while compliance with Direction No. 55 is required where the delegate or Tribunal is the decision-maker, the purpose of the Direction “is to guide decision-makers... exercising powers under section 501 of the Act...” (cl 6.1(3)) (emphasis added). The tension that this might appear at first blush to create is resolved by recognising that compliance with Direction No. 55 does not involve dictating the way in which the discretion is to be exercised; rather the Direction creates a framework within which the discretion vested in the decision-maker is lawfully to be exercised. I understand it to be in this sense that the concept of “guidance” is employed in the Direction.

[81] In furtherance of this, certain principles are identified in cl 6.3 which “provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501.” (cl 6.2(3)).
These principles include that:
(3) 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.
(4) 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) 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.
[82] Clause 7(1) of Direction No. 55 provides that, informed by the principles identified in cl 6.3, a decision-maker “must take into account” primary or other considerations where relevant and “is required to determine whether the risk of future harm by a non-citizen is unacceptable”. The latter determination “requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.” (cl 7(1)(b)). The primary considerations in the context of a decision whether to cancel a person’s visa are identified in cl 9(1). Those primary considerations which the Tribunal found to be relevant to the respondent’s case were protection of the Australian community from criminal conduct, the strength, duration and nature of the person’s ties to Australia, and the best interests of minor children in Australia (the three relevant primary considerations). “Other considerations” which must also be taken into account where relevant include, but are not limited to, those identified in cl 10(1) of Direction No. 55.

[83] Clause 8(3) recognises that “[b]oth primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”. Clause 8 also deals with the manner in which primary considerations are to be weighed against each other and against other considerations. Thus, by virtue of cl 8(4), primary considerations “should generally be given greater weight than the other considerations”, while cl 8(5) provides that “[o]ne or more primary considerations may outweigh other primary considerations” (emphasis added). In my view, the words “should generally” and “may” in cl 8(4) and (5) respectively make it clear that those provisions are intended to provide guidance to the decision-maker as to how the balancing exercise required by Direction No. 55 should be approached which the decision-maker is bound to consider, while leaving it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case. The fact that Direction No. 55, aside from prescribing relevant considerations in a jurisdictional sense, provides guidance only in this sense as to the manner in which they are to be balanced is in my view a fundamental aspect of the scheme. It equips decision-makers with a width of discretion that enables them to take into account the myriad of different circumstances and different combinations of circumstances that may arise and thereby to reach a result that is fair and rational in all of the circumstances, while ensuring that account is had to those considerations that the legislator has identified as crucial to a lawful decision.
In my opinion, despite minor differences between Direction 55 of which her Honour was speaking and Direction 65 those remarks are equally applicable to Direction 65. In Jagroop v Minister for Immigration and Border Protection [2015] FCAFC 48; (2016) 241 FCR 461 the Full Court of the Federal Court (Dowsett, Kenny and Mortimer JJ) compared Direction 55 with Direction 65 and concluded at [79] that no right was conferred by Direction 55 or Direction 65, despite the fact that the “strength, duration and nature of the person’s ties to Australia” was made a primary consideration in Direction 55 and demoted to an “other consideration” in Direction 65, and that in both Directions, primary considerations “generally” prevailed over “other” considerations. That was because even though both directions are prescriptive, and detailed in their prescriptions, Direction 65, like its predecessor, is intended to be applied to each set of individual facts and circumstances presented to the decision-maker. The Court said that the ultimate decision must reflect the claims of, and evidence and information about, an individual. No matter where a factor is situated in the Direction, the claims and evidence about the particular individual may mean that the consideration is afforded the most weight of any factor. All these are evaluative assessments for the decision-maker, which the Direction cannot determine.
Direction 65 is published and it is unnecessary to set out all of its terms relating to the refusal to grant a visa. The preamble specifies in cll 6, 7, and 8 the objectives, general guidance and principles providing a framework within which a decision-maker should approach their task and Part B refers in cl 11 and 12 to considerations relevant in considering whether to refuse to grant a visa. As I have observed, decision-makers are not limited to the “other considerations” referred to in the Direction and should take into account any other matter which they consider to be relevant.
Clause 6.3 states at a general level relevant “principles” which are to be taken into account in any relevant cases. Decision-makers are informed of certain government policies and general matters said to be expected by the community about general situations which may arise, and when the community is said to have a higher or lower tolerance for criminal or other serious conduct.
Primary consideration 1 – Protection of the Australian community from criminal or other serious conduct
Part B then specifies three primary considerations, one or more of which may outweigh others in particular cases, and which the Direction states will “generally” outweigh other considerations. The first mentioned primary consideration is the protection of the Australian community. For this purpose findings have been made in Part 1 of these reasons about criminal or other serious conduct committed or engaged in by the applicant and about the likelihood that he will engage in further misconduct in the future. As I have said, at the age of 60 and with all his male children now in this country, where they are very likely to remain, the applicant has every incentive to remain in their company and the prospect that he might put himself at risk of further detention or refoulement to Iraq is remote.
Primary consideration 2 – The best interests of minor children in Australia
The second primary consideration is the best interests of minor children. That consideration plainly provides strong support for the setting aside of the reviewable decision. It is in my opinion very necessary in their interests for the children to be reunited with their father, as they strongly desire. To keep the applicant in detention will have an adverse effect on the children at a time when the dictates of good government suggest that this country should do what it can to support them because of the trauma that they have suffered.
Primary consideration 3 – Expectations of the Australian community
The third primary consideration is the expectations of the community. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] Mortimer J construed this part of Direction 65 as in substance not favouring any applicant and as a kind of deeming provision based upon government policy, and therefore not dependent on actual community expectations as discerned by the decision maker, including this Tribunal. I therefore proceed on the basis that this consideration favours affirming the reviewable decision.
Other consideration – International non-refoulement obligations
The first expressly mentioned other consideration in the Direction relates to international non-refoulement obligations. Clause 12.1 of the Direction is in the following terms:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests tests enunciated in the Act.

(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

In DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576 North ACJ quashed a decision of the Minister on the basis that it was affected by jurisdictional error in that the Minister had acted on the view that refusal of a protection visa is not precluded by the existence of a non-refoulement obligation because Australia will not necessarily remove a person as a consequence of refusing their visa, to the country in respect of which the non-refoulement obligation exists. The Minister said at [44]: “In making my decision I am aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding s 197C of the Act) he may face the prospect of indefinite immigration detention because of the operation of s 189 and s 196 of the Migration Act.”
North ACJ held that the view taken by the Minister involved a misunderstanding of s 197C of the Migration Act. That section provides as follows:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Thus, North ACJ decided that to fail to remove a person to whom protection obligations were owed would involve a breach of s 197C and instead to detain him or her indefinitely would be unlawful.
The decision in DMH16 binds this Tribunal and, despite the remark in the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2107) 248 FCR 456 at [57] (Bromberg and Mortimer JJ) that the proper construction of s 197C is a large issue which should await an appropriate case for consideration, it has not been considered in the Full Court.
In BHKM and Minister for Immigration and Broder Protection (Migration) [2018] AATA 3 and in FTYC and Minister for Immigration and Border Protection [2018] AATA 20, I gave consideration to the proper construction of Direction 65 where protection obligations were owed to the visa applicant or holder. In those cases, as in this case, I was informed that government policy is that even if a protection visa is refused or cancelled and protection obligations are owed, the visa holder or applicant will not be removed in breach of treaty obligations owed by this country. There is of course a theoretical possibility that even though the Minister has opposed the setting aside of a refusal of the reviewable decision before the Tribunal he might nevertheless exercise his non-compellable power to grant another visa under s 195A of the Act, and the High Court held that detention for the purpose of leaving it open to the Minister to exercise that power, would be illegal and executive detention for that purpose would be an impermissible exercise of judicial power by the executive: see Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319.
That information about government policy which I have now been furnished with has further dimensions. If the reviewable decision in this case is affirmed, and even if no non-compellable power is exercised by the Minister, the applicant will not in fact be sent back to Iraq because that would involve Australia in a breach of one or more treaties. If the actual practical effect of affirming the reviewable decision is that in all likelihood the applicant will remain in open-ended or indefinite detention, then that is a matter which in my opinion it is open to the Tribunal to take into account when deciding what decision is the correct or preferable decision.
It is a very strong thing for a decision-maker, including this Tribunal, to decide that the best course is to detain an applicant indefinitely. It is the kind of thing that would ordinarily only be open to a judge sentencing an offender for a crime of great seriousness, such as murder. In a case where the person committed to indefinite detention has already been punished, such a direction will have some or most of the hallmarks of double punishment.
In BHKM and in FTYC it was decided that if the effect of affirming the reviewable decision were that action would be taken (that is, consistently with DMH16) involving refoulement of a person to whom protection obligations were owed, that would constitute a very powerful discretionary reason not to affirm the reviewable decision.
In this case, it seems to me that in the light of the further dimensions of government policy referred to in [71] the likely prospect of indefinite detention if the reviewable decision is affirmed also provides a powerful reason to set the reviewable decision aside. No other course appears to me to be consistent with the dictates of good government. Neither the decision maker nor this Tribunal has judicial power and to decide to bring about the result that a person will or may be detained indefinitely has the hallmarks or many of the hallmarks of an exercise of judicial power.
The other consideration mentioned in cl 12.2 of the Direction 65 also has application in this case, in relation particularly to the quite close relationship which the applicant has with his elder sons, each of whom has regular contact with him at Villawood, and who describe him as a good father, whose release from detention they support.
PART 3 – SUMMARY OF THE TRIBUNAL’S FINDINGS
In weighing the various consideration in this case, I treat the best interests of the minor children as a factor which outweighs all of the other primary considerations and I treat the fact that the applicant is owed protection obligations which will in fact lead to the likely indefinite detention of the applicant unless the reviewable decision is set aside as a reason why the delegate should not have made the reviewable decision and why this Tribunal should now set it aside. To the extent that the decision in DMH16 deals with the matter in legal terms, I regard the non-refoulement obligations owed in respect of the applicant as another powerful reason to set the reviewable decision aside.
DECISION
The reviewable decision is set aside and the matter remitted to the respondent with the direction that the discretion in s 501(1) of the Act is to be exercised in the applicant’s favour.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

.................................[SGD].................................
Associate
Dated: 23 November 2018

Date(s) of hearing: 12 and 13 November 2018

Solicitors for the Applicant: Ms A Battisson, Human Rights for All Pty Ltd

Solicitors for the Respondent: Ms D Watson, Australian Government Solicitor

Date(s) of hearing:	12 and 13 November 2018
Solicitors for the Applicant:	Ms A Battisson, Human Rights for All Pty Ltd
Solicitors for the Respondent:	Ms D Watson, Australian Government Solicitor