TKSN and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 280
•19 February 2025
TKSN and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 280 (19 February 2025)
Applicant/s: TKSN
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10215
Tribunal: Senior Member N Manetta
Place:Adelaide
Decision Date: 19 February 2025
Date of written reasons: 7 March 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant’s application for a visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
Written reasons for this decision will be provided within a reasonable time hereof.
..........................[SGND]......................................
Senior Member N Manetta
Catchwords
MIGRATION – refusal of resolution of status visa under section 501(1) of Migration Act, 1958 (Cth) – applicant currently on bridging visa pending removal – applicant has limited history of domestic violence – applicant at low risk of reoffending – applicant living a somewhat precarious life – uncertain future with bridging visa – decision set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005.
Secondary Materials
Administrative Review Tribunal (Migration, Protection and Character) Practice Direction 2024
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
The hearing of this matter concluded on 18 February 2025. I delivered my decision without reasons on 19 February 2025. Had I not done so, the decision under review would have been affirmed by operation of law.[1] When I delivered my decision, I was clear as to the appropriate outcome and my reasons, but I did not have sufficient time to prepare written reasons. I indicated to the parties that written reasons would follow within a reasonable time, a course permitted by the Administrative Review Tribunal Act 2024 (Cth).[2] I now publish my written reasons.
[1] See s 500(6L) of the Migration Act, 1958 (Cth).
[2] See s 111(3) read in conjunction with the Administrative Review Tribunal (Migration, Protection and Character) Practice Direction 2024, paragraph [5.12].
This is an application by ‘TKSN’, a person whose name has been anonymised in the interests of confidentiality and to whom I shall refer as ‘the applicant’. The applicant seeks a review of a decision by the respondent dated 27 November 2024 to refuse to grant him a Safe Haven Enterprise visa (‘SHEV’) under s 501(1) of the Migration Act 1958 (Cth) (‘the Act’).[3] The respondent accepts that the application for the SHEV is now deemed in law to be an application for a permanent Resolution of Status visa.[4]
[3] The delegate’s decision and reasons were before me: see Hearing Book (‘HB’), 55ff.
[4] See Respondent’s Supplementary Closing Submissions dated 17.2.25.
Section 501(1) of the Act grants a discretion to the Minister to refuse a visa to a person who does not satisfy the Minister that he or she passes the so-called ‘character test’ as defined in section 501(6). Section 501(1) has, accordingly, two aspects to it. First, there is the jurisdictional threshold of a person not satisfying the Minister that he or she passes the character test. Secondly, if the jurisdictional threshold is met, the question of the exercise of the discretion arises. The delegate was not satisfied that the applicant passed the character test. In particular, the delegate found that there was a risk that the applicant would engage in criminal conduct. It followed that the applicant did not pass the character test: see section 501(6)(d)(i).
Given this conclusion, the delegate was required to address the question of the proper exercise of the discretion. In relation to this second question, the delegate was bound to apply Direction No. 110 issued under section 499 of the Act (‘the Direction’).[5] Having weighed the various considerations specified in the Direction, the delegate decided on balance that they favoured exercising the discretion. The delegate formally proceeded to refuse to grant a SHEV to the applicant.
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
TRIBUNAL’S TASK
In a case like this, the Tribunal conducts its review by hearing the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[6] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.[7]
[6] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal’s exercise of jurisdiction.
[7] This paragraph is a standard paragraph I insert in many of my decisions.
At the hearing before me, Ms Huynh appeared for the applicant; Mr Burgess, for the respondent.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a visa not be refused under section 501(1) of the Act. I set out the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The applicant is a citizen of Vietnam who arrived in Australia (at Ashmore Reef) on 14 April 2013 at the age of 22. He has stayed in Australia ever since that time.
The applicant was 34 years of age at the time of the hearing before me. He has a very complicated visa history, which is set out helpfully in a table in the annexure to the respondent’s Statement of Facts, Issues and Contentions.[8] There is no need to recapitulate it in these reasons.
[8] HB, 21-22.
The applicant applied for a SHEV in 2017. This application was initially judged invalid; but, as I understand matters, the respondent accepted in 2021 that the application was in fact valid, and not invalid. In the meantime, the applicant had engaged in certain criminal conduct that led to the cancellation of his then current Subclass 050 Bridging (General) visa. I shall describe the offending in due course.
Following a criminal conviction in 2018, the applicant’s visa was cancelled and he was detained in immigration detention on 27 November 2018. He was subsequently released on 1 August 2023 into ‘community detention’. This period comprises four years and eight months.
The applicant’s SHEV application was rejected by the respondent’s delegate on 27 November 2024. On the same day, the applicant was granted a Bridging (Removal Pending) visa. This visa allows the applicant to remain in the Australian community, but he may be removed at any time to a third country or to Vietnam (should the situation there change so that Australia no longer owes him non-refoulement obligations).
I now turn to describe the applicant’s offending. The applicant’s criminal record was before me.[9] It is a limited record and it concerns convictions spanning a period from August 2018 to November 2018. All convictions were recorded by the Richlands Magistrates Court in Queensland.
[9] HB, 78-79.
The first court appearance occurred on 21 August 2018. The applicant was charged with two offences. The first involved the possession of dangerous drugs on 16 August 2018; and the second involved the contravention of a police protection notice on the same day in respect of his ex-wife. The applicant had been served with the police protection notice earlier that day. Despite the notice he sought out and found his ex-wife at her sister’s house. He created a substantial disturbance at the premises banging on the front door for approximately one hour and demanding to be let in. He was arrested by police and was found to be carrying almost 2 grams of methylamphetamine, and also a copy of the protection notice.
The applicant was fined $900 on all charges and a conviction was recorded. As a result of that conduct, the applicant was served with a domestic violence order.
On 6 September 2018, he attended his ex-wife’s premises and knocked at the door but she refused him entry. He came back approximately two-and-a-half hours later and entered the house. The ex-wife locked herself in her bedroom until police came and removed him from the premises. He was charged with two counts of breaching the domestic violence order and pleaded guilty on 7 September 2018. A conviction was recorded on both charges and again a $900 fine was imposed.
The third series of offences occurred on 10 September 2018 and on 15 September 2018. Just three days after his conviction on 7 September 2018 (i.e., on 10 September 2018), the applicant entered his ex-wife’s premises through an unlocked front door and said to his ex-wife that he wished to speak to her. She asked him to leave. He did not and proceeded to lock the front door. The applicant shoved his ex-wife towards the bedroom, where he said he wished to speak to her. They spoke there for several minutes. She then went to the living room. The applicant was ostensibly seeking forgiveness, it would appear, for his past behaviour. She indicated that she wished to leave the premises but he blocked her exit. He then shoved her twice in the back. After he had walked into another room, she was able to leave the house. She told the applicant to leave while she was standing outside the house. He then pulled her back towards the house by one of her shoulders and several metres back into the doorway. The applicant let go of the victim only when a passerby observed events. The applicant then left the premises.
These events led to a number of charges. First, there was a breach of the domestic violence order (an aggravated offence); secondly, a common assault consisting of shoving the ex-wife up the hallway; thirdly, a common assault comprising of pushing the ex-wife on her back shoulder area twice; and fourthly, a common assault charge arising from pulling the ex-wife several metres into the house.[10]
[10] This was wrongly pleaded as having occurred on 15 September 2016: HB, 96.
On 15 September 2018, the applicant was found by police circulating in a taxi in the vicinity of the premises. He appeared to be drug-affected. A used glass pipe was found on his person. This led to a charge of possessing a pipe for drug use: presumably, he had been smoking methylamphetamine.
The applicant appeared in the Richlands Magistrates Court on 27 November 2018. He received an aggregate sentence in relation to all offending. A conviction was recorded and he was given a 12 month probation order with a condition that he attend counselling in respect of relationships and domestic violence. The applicant did not attend that counselling.
The applicant executed a statutory declaration on 2 October 2022 in relation to an application he had made to the Minister for a bridging visa while he was in detention.[11] That statutory declaration deals with the events of this time. I believe the declaration underplays the significance of the events I have described; but I accept in general terms what the applicant says about the genesis of the conflict between his ex-wife and him. From January 2018 to June 2018, the applicant and his wife had had continual arguments about money because the business into which they had invested all their savings was failing. He says he had to deal with his personal failures and the breakdown of his relationship with his wife (which occurred in June 2018). He says that he became addicted to drugs in about June 2018 when he had to sell the business. He is right in his observation that the offending occurred over a period of just one month from 16 August 2018 to 15 September 2018. I accept that context for the offending, whilst noting that the applicant did not address in his statement the seriousness of his violence, his moral responsibility to restrain himself, or his defiance of the law by ignoring restraining orders from responsible authorities.
[11] HB, 136ff.
Finally, the respondent referred me to a number of incidents in immigration detention.[12] I note them, and have taken them into account, but I have decided that they cannot be a ‘tipping point’, so to speak, in my deliberations, and so I do not deal with them further.
[12] See HB, 10-11 [22.5].
REASONS
I must first decide whether or not the applicant passes the character test. The basis upon which the applicant fails the character test is said to be that he poses a risk to the Australian community of committing a further offence.
In my opinion, there is a risk that the applicant will revert to the unlawful use of drugs. I accept that he has not had drugs in his possession for some considerable time, but at the present time his life appears to be somewhat precarious and isolated. He is living in a shared house and does not have regular employment. The many years in detention would have made a considerable impact upon him. His offending was no doubt serious in that it involved continued harassment of his ex-wife; but it did not lead to a custodial term of imprisonment. He was nevertheless taken into immigration detention in November 2018 and remained there until August 2023. That could not help but have had an enormous impact upon him in my view. The applicant generally impressed me as someone who is still in the process of rebalancing his life after the disasters affecting him from June 2018. I think the return to drugs is still a risk in times of extreme stress, which of course the applicant may face at some point in the future.
‘Ice’, the common name for methylamphetamine, is a particularly pernicious drug, and highly addictive. I am not persuaded that there is sufficient distance, even after these many years, to say that the risk of the applicant taking the drug is only trivial. In these circumstances, and bearing in mind that I need only be satisfied that there is a risk of future offending, I have decided that the applicant does not pass the character test.
This then gives rise to the question of the application of the discretion in this case. Like the delegate, I must apply the Direction.
Considerations arising under the Direction
I turn now to the Direction. In these matters I usually set out certain prefatory remarks, and I do so again in the following four paragraphs.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia and, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Applying the Direction
I turn now to apply the Direction. Paragraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. I am directed to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I must have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law-abiding and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.
Subparagraph (2) provides 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.
I turn now to consider the nature and seriousness of the non-citizen’s conduct. Paragraph 8.1.1(1) sets out a number of matters to which I should have regard in assessing the seriousness of the conduct. I note that I am directed to consider crimes of a violent nature against women as very serious regardless of the sentence imposed.[13] Equally, I am to consider acts of family violence as very serious.[14] Those principles apply here in respect of the instances of family violence against the applicant’s ex-wife to which I have referred.
[13] By subparagraph (a)(ii).
[14] By subparagraph (a)(iii).
I regard the drug offending as serious as well. The misuse of methylamphetamine, or ice, is serious from a number of perspectives. First, although the applicant was a consumer and not a supplier of the drug, his illicit purchases helped to propagate a pernicious trade that harms the Australian community. Secondly, ice is a disinhibiting drug that can lead to unpredictable behaviour. Accordingly, the applicant’s conduct was serious.
I am to have regard to the sentences imposed except in the case of the violent offending: this offending is always taken to be very serious.[15] I have had regard to the sentences imposed with respect to the applicant’s drug misuse, although they appear as part of aggregate sentences. On the first two occasions only fines were imposed and that shows the offending to be relatively minor. On the third occasion, the possession of the used drug pipe on 15 September 2018 was not separately sentenced, but was subsumed within the aggregate sentence imposed in respect of the offending on 10 September 2018.
[15] See paragraph 8.1.1(1)(c) of the Direction.
I must also have regard to the impact of the offending on any victims where information in this regard is available.[16] The impact upon the ex-wife of the offending is not known to me: I do not have information available to me. I leave to one side the letter that the applicant’s ex-wife apparently wrote to the applicant while she was in jail.[17] I do not regard that letter as relevant to any conclusion with respect to impact.
[16] See paragraph 8.1.1(1)(d) of the Direction.
[17] Ex R1.
I must have regard to the frequency of the applicant’s offending and whether there is any trend of increasing seriousness.[18] The offending took place over a short period of time. All in all, the offending is spread over just one month eight-and-a-half years ago. Nevertheless, there were a number of instances. The particularly serious aspect of the offending is that a police notice was ignored as was a domestic violence order; and the third set of convictions did involve a number of assaults. It was clear at that stage that the applicant was determined to ignore the orders made by responsible public authorities. So, I find that there was some frequency (albeit over a short period of time) and I find also that there was a trend of increasing seriousness.
[18] See paragraph 8.1.1(1)(e) of the Direction.
There is a cumulative effect of repeated offending in respect of victims of family violence, and I take that into account.[19]
[19] Paragraph 8.1.1(1)(f) of the Direction.
I now turn to consider the risk to the Australian community should the applicant reoffend. Paragraph 8.1.2(1) provides that when considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk of repetition may be unacceptable. I bear this principle in mind.
I am then directed to assess the risk that the applicant may pose to the Australian community by having regard to, ‘cumulatively’, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of his engaging in that conduct taking into account information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of the decision.[20]
[20] Paragraph 8.1.2(2) of the Direction.
If the applicant were to return to drug use, he could be led to further violent conduct towards any partner he might have at the time. That has been a feature of his life to date. I do accept that the harm that has been done to his former partner has been confronting, and has extended to a degree of physical violence. Equally, however, it would be wrong to ignore the fact that the violence has been limited on each occasion. Nevertheless, I do bear in mind the unpredictability of such situations and the fear they induce in victims who cannot know the level to which the violence they are facing may escalate.
I must have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct. I regard the risk of a resumption of a drug habit as low although not minimal. I accept the applicant’s evidence in his statutory declaration that there were particular circumstances surrounding the failure of the business and the decline in his marital relationship that led to his misuse of the very serious drug ice. I accept that those circumstances are not present in the applicant’s life currently. I accept that there is no evidence that he has actively misused drugs in the last six years, whether in detention or outside detention. I accept his assertion that he has found a Christian faith that has assisted him. But at the present time, he does not have a secure and balanced way of living. He is living with friends at the present time and my impression of him at the hearing was that life is still something of a struggle for him. He is eking out a living as best he can in very unsettled circumstances. I do believe that his life is somewhat precarious at the present time. I regard the risk of violence to a future partner as low provided the applicant stays away from drugs. I believe that in this case there was a clear link between drug misuse and his family violence. I do not believe that there is any risk to the former partner as there is no contact between them.
Paragraph 8.2 requires me to consider family violence committed by the applicant. Subparagraph (1) notes that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of 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, and there is a reference to subparagraph (3) in this regard.
In assessing the seriousness, I must have regard to the frequency of the violence and whether there is any trend of increasing seriousness. I refer to my earlier observations in this regard.
I must also have regard to the cumulative effect of repeated acts of family violence. The violence extended over three different occasions. That must have had an ongoing effect upon his ex-wife at the time. I do not believe that the applicant has genuinely reflected upon his own personal responsibility for the family violence. I say that because whilst I accept the context of the violence set out in the applicant’s statement (namely, the drug abuse and failing business) there is little in this statement that addresses the seriousness of the violence and the applicant’s personal responsibility as a physically larger and more threatening adult who is accountable for his conduct. I do not believe he has reflected adequately on the impact of his behaviour on his ex-wife. I do believe that he understands that his drug problems led to unregulated behaviour. He has not engaged formally in rehabilitation processes, but he has developed a faith, and that faith does assist him to lead a life that is, generally speaking, more altruistic and considerate towards others. I accept also that the applicant would have been warned on several occasions not to reapproach his wife and that he understood the documents served upon him.[21]
[21] Paragraph 8.2(3)(d) of the Direction.
I must have regard to the strength, nature and duration of ties to the Australian community. I have read the delegate’s analysis of this matter.[22] I agree with the analysis, and I need not recapitulate it. I agree that it is a matter that weighs moderately in favour of the applicant.
[22] HB, 66- 68.
The interests of minor children do not arise for consideration in this case.[23]
[23] Cf paragraph 8.4 of the Direction.
I turn now to the expectations of the Australian community. Paragraph 8.5(1) makes it clear that the Australian community expects non-citizens to obey Australian laws. Where non-citizens have engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community expects ‘as a norm’ ‒ albeit not as an inflexible rule ‒ that they not remain in Australia.
Subparagraph (2) then provides that the refusal of a visa may be appropriate simply because of the nature of the character concerns. In particular, the Australian community expects that the Australian Government should refuse visas in cases involving acts of family violence and the commission of serious crimes against women (including violent crimes). Clearly, this consideration is satisfied here. The expectations of the community apply whether or not the non-citizen poses a measurable risk of causing physical harm in the future.[24] I am directed, moreover, to proceed on the basis of the Government’s views as articulated in the paragraph without assessing them in an individual case.[25] I have done so. This consideration does count considerably against the applicant.
[24] See paragraph 8.5(3) of the Direction.
[25] See paragraph 8.5(4) of the Direction.
I turn now to the so-called other considerations under section 9. If I affirmed the decision under review, the applicant would remain on his Bridging visa (Removal Pending). He cannot be forcibly removed to Vietnam as he is owed non-refoulement obligations. If I affirmed the decision under review, he would remain in the Australian community for the present time.
The applicant would stay in the Australian community until a third country were found to take him, the prospect of the regime changing in Vietnam being a remote and speculative one. At that point, he would be removed from Australia. There is no information before me that suggests a viable third-country option is presently being explored. It seems counterintuitive to suppose that a third country would take a person from Australia whom Australia does not wish to retain because he or she is a threat to the community. Nevertheless, as a result of certain statutory amendments made last year, the Australian Government is specifically authorised to offer financial inducements to persuade other countries to take non-citizens from Australia.[26] I have no evidence before me which would suggest that the applicant is at immediate risk of being removed; but clearly the scope for successfully removing him to a third country if the Government is minded to remove him is somewhat enhanced by the new power.
[26] See section 198AHB of the Act.
If I affirm the decision under review, the applicant will never be secure in Australia as he will face the ongoing possibility of deportation at any time without a legal right to apply for a new visa. It is true that when it granted the applicant a bridging visa, the respondent must have formed the view that there was no real prospect at that point in time of the applicant being removed to a third country in the reasonably foreseeable future;[27] but that situation can, of course, change, and it will change if the Government seeks actively and with success the involvement of a third country. This applicant has a very precarious life at the moment, and it will be a significant burden to him as he attempts to rebuild his life after many years in detention to know that his life in Australia may be terminated at any time. In and of itself, that is a very considerable burden to carry forward. It is a particular burden for someone who has already spent so much time in immigration detention. The time the applicant spent in immigration detention far exceeded any custodial sentence that could reasonably have been imposed on the applicant in respect of his offending. On the other hand, as the respondent conceded, if I set aside the decision under review, the applicant is now eligible for the grant of a Resolution of Status visa, which is a permanent visa. That the legal consequence of my decision is to confine the applicant to a Bridging visa (Removal Pending) is a matter that weighs considerably in his favour.
[27] This is the criterion by which ongoing detention is judged to be unlawful, effectively forcing the Government to grant a visa to a detainee to permit him to remain in the community: see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations that I have identified. In this regard, I bear in mind that I must weigh the individual circumstances of the case before me.[28] I bear in mind immediately that the applicant has engaged in conduct that the Direction speaks very strongly against. Violence against women, particularly in a family context, is addressed in the Direction in strong and unambiguous terms. I bear that at the forefront of my mind. The violence in this case has been associated with drug misuse, itself an anti-social act; and I note that the applicant chose to use the pernicious, highly addictive, and disorienting drug methylamphetamine or ice. The applicant has not yet re-established himself in the community on a steady basis although I do give him credit for the efforts he has made to date to build a faith-centred life, to find some occupation that will remunerate him, and to find some meaningful connection in a family-like environment. There are character concerns that arise from his behaviour, however, and these arise irrespective of any future risk he may pose to the community.
[28] Paragraph 5.1(2) of the Direction.
I am mindful also that the protection of the Australian community is the highest priority of the Government as is made clear in the Direction. Nevertheless, the individual circumstances of the case are important, and the Direction makes it clear that I must have regard to those individual circumstances. Moreover, no one consideration is prescribed to lead to a particular result irrespective of the individual circumstances. The evaluation and weighing required under the Direction always takes place in an individual context. This is a case where the applicant has engaged in violence but over a very short period of time (namely, one month). Whilst it is to be deprecated, the violence was relatively limited although no doubt threatening and confronting for the ex-wife.
This applicant will feel the burden of uncertainty associated with a bridging visa. That is an important matter for this particular applicant in the somewhat precarious circumstances of his life. He has some ties to Australia as the delegate found. Whilst his behaviour is to be deprecated, the risk of his reoffending is low although not nil. I believe that there is a great deal of deterrence for this applicant who has seen where drug misuse has taken him. A number of years of his life have been wasted in a sense in detention.
CONCLUSION AND FORMAL DECISION
After evaluating and weighing all relevant considerations under the Direction, I have decided that the preferable decision is not to exercise the discretion in s 501(1) to refuse the applicant’s visa application, which is now taken in law to be an application for a Resolution of Status visa. I shall, accordingly, set aside the decision under review and substitute a decision to this effect.
58. 59. I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for the decision herein of Senior Member N. Manetta. |
.........................[SGND]..........................................
Feng J, Associate
Dated: 7 March 2025
| Date of hearing: | 13, 14 and 18 February 2025 |
Solicitor for the Applicant: | Ms N. Huynh |
| Counsel for the Respondent: | Mr A. Burgess |
| Solicitor for the Respondent | Ms I. Macdonald |
EXHIBIT REGISTER
Document
Exhibit Number
Hearing Book (4 volumes), filed by the respondent on 11 Feb 2025 HB Letter from the Applicant’s ex-partner with attached envelope tendered by the Respondent R1
0
2
0