TLTV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

TLTV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1352 (5 May 2020)
Division:GENERAL DIVISION
File Number: 2020/0739
Re:TLTV
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:5 May 2020 (10:00 am)
Date of Written Reasons: 11 May 2020
Place:Perth

The Tribunal sets aside the decision of the delegate of the Respondent dated
11 February 2020 to refuse to grant the Applicant a Class WE Subclass 050 Bridging (General) (temporary) visa and remits the matter to the Respondent for reconsideration in accordance with s 65 of the Migration Act 1958 (Cth) with a direction that the Applicant passes the character test for the purposes of s 501(1) of that Act.
.........[Sgd]...............................................................
Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – bridging visa – is the Tribunal satisfied that the Applicant passes the character test – whether the Applicant would engage in the conduct identified in ss 501(6)(d)(i), 501(6)(d)(ii), or 501(6)(d)(v) – whether having regard to a person’s past and present criminal conduct and/or their past and present general conduct under s 501(6)(c) the Applicant is not of good character – Direction No. 79 – Annex A – application of the character test –– decision to be set aside and remitted with a direction that the Applicant passes the character test for the purposes of s 501(1) of the Migration Act 1958 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 62(4)
Migration Act 1958 (Cth) – ss 5, 5AA(1), 35A(3A), 36(2), 65, 195A, 473CA, 499(1), 500(1)(b), 500(6B), 500(6J), 500(6H), 501, 501(1), 501(6), 601(6)(c), 501(6)(d), 501(6)(d)(i), 501(6)(d)(ii), 501(6)(d)(v), 501G(1)
Migration Amendment (Character and General Visa Cancellation) Act (2014)
Criminal Code Act Compilation Act 1913 (WA) – ss 317(1)(a), 333

CASES
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Heyward v Minister for Immigration and Citizenship (2009) 112 ALD 226
Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration & Multicultural & Indigenous Affairs vGodley (2005) 141 FCR 552

Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; (2011) 127 ALD 340
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21

SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018) – paras 6.1, 6.1(2), 6.1(4), 6.2, 6.3; Part B, 11.1.1; Annex A, Section 2, paras 5, 5.1,5.2, 6.2, 6.3
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Act

REASONS FOR DECISION
Member S Burford
11 May 2020
THE APPLICATION

This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) on 11 February 2020 to refuse to grant the Applicant’s application for a Class WE Subclass 050 Bridging (General) (temporary) visa (the Visa) under s 501(1) of the Migration Act 1958 (Cth) (the Migration Act). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
BACKGROUND
The following factual background information is drawn substantially from the written submissions of the parties together with the evidence of the Applicant, and is accepted by the Tribunal.
The Applicant is a citizen of the Islamic Republic of Iran (Iran) in his early thirties.[1] He arrived in Australia as an ‘unauthorised maritime arrival’ (UMA)[2] in August 2013.[3]
He was granted a Class UJ Subclass 449 Humanitarian Stay (temporary) visa on
11 February 2015.[4] On 10 February 2015, the Applicant applied for a Class WE Subclass 050 Bridging (General) (temporary) visa, which was granted on 11 February 2015.[5]
The Applicant made and was granted successive applications for a bridging visa in February, June and December 2016 and March and June 2017.[6]
The last visa the Applicant held was a Class WE Subclass 050 Bridging (General) (temporary) visa granted on 29 June 2017.[7] This visa ceased on 14 March 2019.[8]
On 22 September 2016, the Applicant was invited by the Department of Immigration and Border Protection (the Department) (as it then was) to make a valid application for a protection visa.[9] He made an application for a Class XE Subclass 790 Safe Haven Enterprise (temporary) visa (the application for the protection visa) on 22 June 2017 with the assistance of a registered migration agent. [10]
On 11 May 2018, the Applicant advised the Department that he had changed registered migration agents.[11] On 3 July 2018, he made an amended application with the assistance of that second registered migration agent. That application was accompanied by written submissions and evidence.[12]
On 8 August 2018, the Applicant attended an interview with the Department, to give further evidence in relation to his protection claims.[13] He was accompanied by his registered migration agent and assisted by an interpreter. He made post-interview submissions.[14]
On 13 December 2018, a delegate of the Respondent refused the application for the protection visa, on the basis that they were not satisfied that the Applicant met the requirements in s 36(2) of the Migration Act.[15]
On 17 December 2018, the Respondent referred the matter to the Immigration Assessment Authority (IAA), in accordance with s 473CA of the Migration Act.[16] The following day,
the IAA sent the Applicant an acknowledgment of the referral, an information sheet and a copy of the IAA’s Practice Direction.[17]
On 7 February 2019, the IAA affirmed the delegate’s decision.[18] To date, the Applicant has not sought review of the IAA’s decision to the Federal Circuit Court of Australia, nor has he requested Ministerial Intervention. His representative before the Tribunal advised he has been instructed ‘to seek leave for his late appeal’ to the Federal Circuit Court.[19]
On 21 March 2019, the Applicant was invited by the Department to apply for a bridging visa as his bridging visa had ceased on 14 March 2019.[20]
On 22 October 2019 the Applicant was charged with one count of ‘depravation of liberty’[21] and one count of ‘aggravated assault occasioning bodily harm’[22] arising from a violent incident at his workshop in the early hours of that morning. The complainant was the Applicant’s partner, with whom he has been in a relationship for about four years. At that time the Applicant was living with his partner and her 11-year-old son, the Applicant’s stepson, from a prior relationship. The charges have yet to be heard.
The Applicant applied for the Visa on 3 November 2019.[23]
On 11 February 2020, the Delegate of the Respondent refused the application for the bridging visa under s 501(1) of the Migration Act (the Reviewable Decision). The Applicant was notified of this decision by email to his authorised representative, Mr Nikjoo.[24]
Late on 11 February 2020, the Applicant filed an application for review of the Reviewable Decision with the Tribunal.[25]
THE ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test as defined by s 501(6) of
the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal, standing in the shoes of the Delegate, considers that discretion should be exercised to refuse the Applicant’s application for the Visa having regard to the primary and other considerations in Direction no. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79).
The Applicant seeks to challenge the refusal of his application for the Visa both on the ground that he passes the character test and, in the alternative, that the discretion to refuse the Visa should not be exercised. In his application for review under the section
‘reasons for application’, the Applicant stated:[26]
I am not a criminal and risk to Australia public. This was the only incident I was involved in since my arrival to Australia. Since my arrival I have been working and paying my taxes. I employed others in my business.
I have a partner of four years and we plan to get married soon. I also have a
step-son who is close to me like my own son. I supported my partner and my
step-son. They need my support.
My partner and I had argument and I am deeply regret what happened. She is fully support me.
I am also an asylum seeker in Austarlia who is a converted Christian. I am fearful of my life if I forced back to Iran.
The delegate did not fully considered my situation and the legal consequences of his or her decision for me and my family.
(Errors in original.)
The Respondent submits that the Applicant’s Visa should be refused because he does not pass the character test and the balance of considerations under Direction no. 79 are in favour of the discretion to refuse the Visa being exercised. The Respondent submits that the conditions prescribed in ss 501(6)(c) and (d) of the Migration Act apply to the Applicant. Further the Respondent submits that the Applicant’s conduct is serious and presents an ongoing risk to the Australian community and that the expectation of the Australian community is that the Visa would not be granted. The Respondent contends that these primary considerations should outweigh other considerations under Direction no. 79 and weigh in favour of the exercise of the discretion to refuse the Visa.
If the Applicant satisfies the Tribunal that he passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a Visa under
s 501(1) of the Migration Act is not enlivened. However, in such circumstances, the matter would, be remitted to the Respondent for finalisation of the Visa consideration made under s 65 of the Migration Act, with respect to criteria other than those arising under s 501 of the Migration Act. That is, to remit the matter for reconsideration with a direction that the Applicant passes the character test for the purposes of s 501(1) of the Migration Act.
If the Applicant does not satisfy the Tribunal that he passes the character test, the discretion in s 501(1) of the Migration Act to refuse to grant the Applicant a visa is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in s 501(1) of the Migration Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the direction that the Visa not be refused under s 501(1).
JURISDICTION
This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501 of the Migration Act.
As noted above, the Reviewable Decision of 11 February 2020 was communicated to the Applicant by email on the same date.[27] He lodged his application for review on
11 February 2020 and is in the migration zone. He therefore lodged his application for review within the nine day period after he received the decision in accordance with
s 501G(1) and s 500(6B) of the Migration Act.
The Tribunal is satisfied that the application was lodged within time and that it has jurisdiction to review the Reviewable Decision.
PROCEEDINGS BEFORE THE TRIBUNAL
Issues relating to summons to produce
Directions hearings were held on 19 February 2020 and 19 March 2020 in relation to
the matter. Directions were made for the filing of submissions and evidence by the parties. Following the directions hearing, summonses were issued at the request of the Respondent.
The Applicant objected to the issuing of a summons to the Western Australian Commissioner of Police with respect to charges pending against the Applicant.
The Applicant requested and was granted an urgent interlocutory hearing to address the issue of the summons. The Applicant’s objections were heard on 25 February 2020.
The Tribunal was satisfied that the documents sought could reasonably be expected to be relevant in determining the matters in issue before the Tribunal applying the test in
Comcare vMaganga.[28] On that basis, the Tribunal disallowed the Applicant’s objection to the summons issued to the Western Australian Commissioner of Police.
Further directions hearings
Further directions hearings were held on 19 March 2020 and 25 March 2020 to discuss hearing arrangements in the context of the emerging COVID-19 pandemic. Material filed with the Tribunal on 3 March 2020 and identified as ‘Relevant non-disclosable material’, was also discussed at a directions hearing. The Tribunal queried whether the material was correctly characterised as ‘non-disclosable’ as it was either included elsewhere in disclosable material or internal working documents of the Department which the Tribunal did not regard as relevant. In any event, the Respondent did not seek to rely on this material at the hearing and the Tribunal has not had regard to it.
The hearing
The application for review was listed for hearing on 23 April 2020 in Perth.
The Tribunal exercised its discretion to hold the hearing by means of electronic communication. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by electronic communications, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the necessity for the Tribunal to make a decision on the application within the statutory timeframe. The Tribunal took steps throughout the hearing process to ensure the proceedings could continue to be conducted fairly to the parties consistent with the Tribunal’s obligations and objectives under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[29] The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.
The hearing commenced on 23 April 2020 in Perth. The Applicant appeared via videoconference from immigration detention. The Applicant’s representative appeared via video conference from Sydney. The Respondent initially appeared via videoconference from their office, however after significant technical difficulties the Tribunal adjourned the hearing briefly and arranged for the Respondent to appear via videoconference from a separate hearing room at the Tribunal.
The Applicant was represented by Mr Nikjoo. The Respondent was represented by
Ms Taggart of counsel, instructed by Mr Papalia.
The hearing was conducted with the assistance of an accredited interpreter in the English and Farsi (Persian) languages who appeared via telephone.
In the preliminary part of the hearing during the admitting of documents in evidence, the Tribunal raised with the Applicant the question of his foreshadowed objection to the CCTV footage. During this discussion Mr Nikjoo indicated his objection may be determined by whether he could give additional material to the Tribunal regarding developments in the criminal proceedings. It was clear from the discussion that this was new information which may be relevant to the issues under consideration.
Mr Nikjoo indicated he thought the matter might be able to be dealt with by the Tribunal seeking an update on the proceedings for the Applicant during evidence. However, the Tribunal was concerned that while this might deal with any prohibition on consideration of the information under the two-day rule, in the circumstances it may not give a fair opportunity to the Respondent to consider and respond to the information.[30] In order for the Respondent to have an opportunity to consider its position in relation to the new information, the Tribunal adjourned the hearing for a discussion between the parties.
Following the adjournment, the Respondent indicated it accepted the information may be relevant to the issues before the Tribunal and submitted it may be appropriate for the hearing to be adjourned to accommodate this. The Tribunal ascertained the information related to discussion regarding the criminal proceedings and the form in which they would proceed. The Respondent objected to this information being given from Mr Nikjoo in submissions. Mr Nikjoo indicated he would endeavour to produce evidence relating to the status of the criminal proceedings, possibly in the form of a Statutory Declaration from the Applicant’s lawyer in the criminal proceedings. The hearing was adjourned again briefly to enable the Respondent to consider the Applicant’s proposed witness list (which had not been served on them) to indicate which witnesses would be required for cross examination at an adjourned hearing. The Respondent indicated it wished to cross examine three witnesses.
The Tribunal considered the prudent approach was to adjourn the hearing to Friday
1 May 2020. This would provide one business day for the Tribunal to prepare its decision in the matter which was required to be made by 5 May 2020. The Tribunal highlighted to the parties that the timing for the decision would then be extremely tight and noted the importance of compliance with any further directions.
The Tribunal directed the Applicant to file and serve any further evidence by 28 April 2020 (noting that Monday 27 April 2020 was a public holiday in Perth and Canberra). The Tribunal also requested the parties make written submissions by 30 April 2020 on the appropriate orders to be made on the application including whether the Reviewable Decision should be remitted to the Minister with a direction to reconsider the application once the committal proceedings are completed.
The Tribunal also raised with the parties that it understood that an updated version of the Department of Foreign Affairs and Trade, Country Information Report on Iran provided by the Respondent[31] had been released just prior to the hearing. The Tribunal asked the parties to consider whether the updated report was relevant to any non-refoulement issues arising for consideration on the application for review.
Following the hearing, and prior to the close of business on 28 April 2020, the Applicant provided a further statutory declaration from the Applicant addressing the progress of the criminal proceedings.[32] The Respondent provided an email from the State prosecutor handling the Applicant’s criminal proceedings.[33]

Based on this material, it appeared there was significant disagreement on the conduct of discussions regarding the proceedings. Given the nature of the evidence, a statement of what the Applicant had been told by criminal counsel who was not deposed and an email from the State prosecutor who was also not deposed, the Tribunal regards that the most that could be drawn from this evidence was that at the time of the hearing the matter was proceeding on the basis of the current charges.
The hearing resumed on 1 May 2020. Again, the parties appeared by videoconference, and again the hearing was assisted by an accredited interpreter in the Farsi (Persian) and English languages (by telephone). The Applicant gave evidence, as did the Applicant’s partner and Pastor P.
Due to time constraints at the hearing, written submissions on closing were provided by the parties on Monday 4 May 2020. Prior to the conclusion of the hearing, the Tribunal outlined concerns or questions it had relating to matters raised by both parties which it requested be addressed or considered in written closing submissions. Both parties provided written closing submissions.
The Tribunal was grateful for the assistance of both parties in resolving issues associated with the conduct of the hearing due to COVID-19 restrictions.
CCTV footage
As noted above, the Applicant raised an objection to the Tribunal admitting into evidence CCTV of the events leading to the Applicant being charged with ‘aggravated assault occasioning bodily harm’ and ‘depravation of liberty’. The video contained CCTV footage from the Applicant’s business premises where the alleged offences occurred, taken at the time of the alleged offences and seized by police following the complainant attending the police station following the alleged incident.
The Applicant submitted that, in the absence of a conviction, the ‘highly prejudicial effect’ of the video outweighed its probative value.[34]
The Respondent submitted the video was highly probative to consideration of the character of the Applicant.
In this case, the Tribunal was satisfied that the CCTV footage was material in that tended logically to show the existence of facts relevant to the issues to be determined and which would form part of an assessment of the likelihood of the occurrence of future conduct. That is, to say, the evidence had probative value. Where material is capable of having probative value the weight to be attached to it is a matter for the Tribunal to decide.
The Tribunal considered the argument that the probative value of the material is outweighed by the ‘highly prejudicial’ effect of the video. In considering this submission the Tribunal noted that evidence is not inadmissible merely because it paints a bad picture of the Applicant. There must be a quality of unfairness. As the Applicant was able to put his account of the events and was calling the complainant as a witness, the Tribunal was not satisfied that the admission of the CCTV would be unfair to the Applicant. The footage merely presents a record of events. The degree to which that record in reliable, accurate or complete is a matter to be addressed through other evidence and in submissions. Further, the issue of the characterisation of the events was firmly a contested matter between the parties. The Tribunal is required to consider both whether the Applicant meets the character test and, if he does not, whether discretion to refuse the Visa should be exercised. In conducting the review, it is open to the Tribunal to consider not only the Applicant’s criminal convictions, if any, but also his conduct. Care must no doubt be exercised in placing weight on evidence of conduct which has not been the subject of consideration by the courts in the context of criminal proceedings. However, this does not prevent the Tribunal having regard to such material, or require the Tribunal in doing so, to adjudge the guilt or innocence of the Applicant.
Having regard to the authorities and the particular circumstances of the case, the Tribunal considered that any prejudicial effect of the video was outweighed by its probative value in these particular proceedings.[35] The Tribunal noted that the weight to be applied to the evidence in the particular circumstances, and in particular in the context of the unfinalised nature of the charges is a matter for submissions and the ultimate determination of the Tribunal. Accordingly, the CCTV footage was admitted into evidence.
MATERIAL BEFORE THE TRIBUNAL
At the hearings, the Applicant made submissions, gave evidence and was
cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:
·the Applicant’s partner; and
·‘Pastor P’ (the Applicant’s Pastor).
These witnesses gave evidence via videoconference from a separate hearing room at the Tribunal.
The Applicant had indicated they also intended to call Mr L, a business associate of the Applicant. However, at the hearing the Respondent indicated they did not have any questions of cross-examination for Mr L. The Tribunal determined it was not necessary to call Mr L, having regard to the available hearing time and the fact the Respondent did not seek to challenge the contents of his written statement.
The Applicant provided statements from the following additional witnesses who he indicated were also available to give evidence at the hearing:
·Mr A, a business associate of the Applicant;
·Mr A2, a family friend of the Applicant;
·Mr A3, a business associate of the Applicant;
·Mr Al, a family friend of the Applicant;
·Mr Ab, a family friend of the Applicant; and
·Mr Z, a business associate of the Applicant.
The Respondent indicated that it did not object to these witnesses’ statements being admitted into evidence and did not seek to cross examine these witnesses. The Tribunal accepted the statements on that basis.[36] The Tribunal notes there was no statement from Mr Al. Nr Nikjoo confirmed following the hearing that no statement from this proposed witness had been provided. The Applicant also submitted a letter from his stepson. The Respondent indicated they did not require him for cross-examination. The Tribunal accepted his statement on that basis.
Several other witness statements including a report from a psychologist, Mr Cinar, were provided to the Tribunal.[37] The Applicant did not call these witnesses to give evidence. Additional material was submitted by the Applicant to the delegate. This material has been taken into account.[38]
The list of documents admitted into evidence is included as Attachment A to these reasons for decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in ss 500(6H) and (6J) of the Migration Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, the Tribunal has considered the evidence of witnesses provided in response to questions in cross-examination by the Respondent and questions from the Tribunal.
RELEVANT LAW
Subsection 501(1) of the Migration Act provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
The character test is defined in section 501(6) of the Migration Act, which provides relevantly in the context of this matter, that:
(6)For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia; or …
(ii)    harass, molest, intimidate or stalk another person in Australia; or
…
(v)     represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or…
(Original emphasis.)
The Respondent cited s 501(6)(c) of the Migration Act in addition which provides that:
(7)For the purposes of this section, a person does not pass the character test if:
…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or …
(Original emphasis.)
In the present case the Delegate’s decision relied only on the Applicant failing the character test under s 501(6)(d)(i) of the Migration Act.[39] However, the Respondent also relied on
ss 501(6)(c) and 501(6)(d)(ii) of the Migration Act to argue that the Applicant did not pass the character test. The Respondent also cited 501(6)(d)(v) of the Migration Act in submissions but did not make any submissions on that provision in closing.
The role of the Tribunal in such a review is to determine for itself what is the correct or preferable decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286. The Tribunal is not limited to reviewing the Delegate’s decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. The Tribunal’s role is ‘“to do over again” what the original decision maker did’.[40] It is, therefore, open to the Tribunal to consider the other character grounds in s 501(6) of the Migration Act in conducting the review.
If the Tribunal is not satisfied that the Applicant passes the character test as set out in
s 501(6) of the Migration Act, the Tribunal may refuse to grant the Visa. That discretion must be exercised by the Tribunal in accordance with Direction no. 79, which was issued under s 499 of the Migration Act on 20 December 2018, and came into effect on 28 February 2019.
Paragraph 6.1 of Direction no. 79 sets out the objectives of the Migration Act, with paragraphs 6.1(2) and (4) of Direction no. 79 being relevant to the Reviewable Decision which is currently before the Tribunal:
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under ss 501 and 501CA of the Migration Act, including the Tribunal.
The primary considerations in Part B of Direction no. 79 in deciding whether to refuse the non-citizen’s visa are the:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian Community.
The decision-maker must also take into account other considerations insofar as they are relevant to the matter, such as international non-refoulement obligations, and the impact on victims, family members and Australian business interests.
Annex A to Direction no. 79 (Annex A) provides direction on the application of the character test set out in s 501(6) of the Migration Act.
THE APPLICANT’S OFFENDING HISTORY, CURRENT CHARGES AND CONDUCT
The National Criminal Check ‘Nationally Coordinated Criminal History Check Results Report’ dated 6 January 2020 indicates that the Applicant has not been convicted of any offences in Australia.[41] Further, there is no evidence before the Tribunal that he has been convicted of any offence in a foreign jurisdiction.
Criminal charges
The Applicant is currently facing charges of ‘depravation of liberty’[42] and ‘aggravated assault occasioning bodily harm’.[43] He was charged by prosecution notice on 22 October 2019 and initially remanded in custody.[44] As noted above, the complainant was his partner of four years.
On 6 November 2019, the Applicant appeared in the Perth Magistrates Court, where he was remanded on bail conditions including that he reside at an address in a specified suburb of the Perth metropolitan area and a protective bail condition that he is ‘not to contact or attempt to contact [the Applicant’s partner] by any means and not to approach or remain within 100 meters of them, not to approach or remain within 100 meters of where they live or work’.[45]
He was next due to appear before the court for committal mention on 15 January 2020. Evidence before the Tribunal indicates the matter was next listed for a committal mention in the local Magistrates Court on 6 May 2020, the day after the decision on this application was due to be made.[46]
The charges follow a complaint to police made by the Applicant’s partner in the early hours of 22 October 2019 following a physical altercation between the couple at the Applicant’s workshop. The complainant entered the police station in distress, showing visible bruising to her arms and mouth.[47]
Police later attended the workshop, where they spoke to the Applicant, and placed him under arrest on suspicion of committing aggravated assault occasioning bodily harm and deprivation of liberty. Police seized a CCTV hard drive and other evidence from the premises.[48]
According to police records, the complainant declined to make a formal statement to police.
As noted above, there was conflicting evidence from the Applicant and Respondent as to whether the charges will proceed and in what form The Tribunal accepts that on the present evidence the charges are proceeding as stated. The Tribunal also accepts, based on her evidence before it, that the Applicant’s partner would likely be a ‘hostile’ witness in the criminal proceedings.
Alleged breaches of bail
In the context of consideration of the Applicant’s conduct and a risk of offending if released, the Respondent also alleges that the Applicant has, on his own evidence, had contact with his partner while in immigration detention in breach of his bail conditions. Further, the Respondent submitted that evidence the Applicant had breached the conditions of his bail was relevant to consideration of his criminal and general conduct under s 501(6)(c).
The Applicant stated that he has daily contact with his partner by telephone and that she visits him each week at the detention centre. He contended that he had understood that as it was his partner who initiated the contact with him he was not breaching the conditions of his bail. He contended that he had not had the assistance of an interpreter at the remand hearing where bail was set and the conditions had not been properly explained to him.
He said that if released from detention he would reside separately from his partner while the conditions remained in place.[49] He said he ‘would go find a place or rent a place’. It was not clear from his evidence if he was referring to the address in a suburb of the Perth metropolitan area specified in the bail conditions.
There was no evidence any charges were laid against the Applicant with respect to the breach of the conditions of his bail.
Unlawful status and protection visa refusal
In addition, and again in the context of consideration of the Applicant’s conduct, the Respondent submitted that the Applicant was living in the community as an unlawful non-citizen between the period since the expiry of his last bridging visa in March 2019 and his arrest and detention in October 2019. While unlawfully in the community the Applicant had operated a business, which the Respondent submits was also unlawful.
The Respondent submitted this conduct reflected poorly on the Applicant’s character and was relevant to consideration of his criminal and general conduct under s 501(6)(c).
The Applicant has also had an application for a protection visa refused by the Department[50] and the IAA.[51] This included negative findings regarding the credibility of the Applicant’s claims for protection.
The Respondent submitted this impacted the credibility of the Applicant’s evidence and his claims not to be a risk to the Australian community.
These submissions are considered further below.
EVIDENCE
CCTV Evidence
As noted above, the Respondent submitted as evidence the CCTV footage from several cameras at the Respondent’s workshop which captured the events of 22 October 2019. The CCTV footage was seized by police on that day and was produced under summons by the Western Australian Commissioner of Police.
The footage was shown to both the Applicant’s partner and Pastor P during cross examination. The Applicant indicated he had seen the footage once when it was shown to him by police. It was not put to him in evidence-in-chief or cross-examination.
In general terms, the Tribunal observed that the footage was at times unclear and that some of the activity on the footage was at least partly obscured during the incident due to the angles of the cameras and the layout of the workshop.
The selected portions of the CCTV footage identified by the Respondent to show the witnesses in cross examination showed several viewpoints in the workshop, one external and two internal. The external footage showed the Applicant’s partner arriving at the workshop, being admitted via the roller door, exiting once with the Applicant following her and moving back inside while they exchanged in a physical fight. The Applicant’s partner later leaves and drives away in the car. The internal camera angles showed the Applicant in the workshop going to the workshop roller door, engaging with someone at the door who was then admitted and appeared to be the Applicant’s partner. The footage records what appears to be an extended argument between the couple where at various points both the Applicant and his partner physically strike each other. There are several breaks in physical contact where they appear to continue arguing, moving around the workshop. At one point the Applicant’s partner leaves the room (she gave evidence that this was to go to the bathroom) and then returns. As noted above, she also leaves the workshop, is followed by the Applicant where they continue to exchange physical blows and return inside. After a further altercation, the Applicant sits down with his head in his hands and his partner leaves.

The footage is undoubtably confronting. It records a violent altercation between the Applicant and his partner. The Tribunal notes that the Applicant is significantly larger in stature than his partner and at several points appears to use significant physical force against her, including while she is on the ground and he appears to be on top of or above her. At times he appears to restrain her though it is not clear in the video if he forces her to return to the workshop or if they do so while fighting each other. However, in the Tribunal’s view some of the actual violent interaction is significantly obscured in the footage by camera angles and items in the workshop and it was not clear to the Tribunal on a number of occasions exactly what was taking place. There is no sound on the footage, though the parties can be seen to be exchanging words in a heated fashion.
Further consideration of the CCTV footage is given below.
Evidence of the Applicant
The Applicant gave evidence before the Tribunal. Mindful of the pending criminal charges, the Tribunal pointed out to the Applicant at the commencement of his evidence that in accordance with s 62(4) of the AAT Act, he was not required to answer questions when doing so might tend to incriminate him. The Tribunal notes that on several occasions in response to questions relating to the detail of what happened on the morning of
22 October 2019 the Applicant indicated he did not wish to answer the questions.
The Tribunal understood him to be expressing the right protected by s 62(4) of the AAT Act. On several occasions the Tribunal explained to the Applicant that while he was not required to answer questions when doing so might tend to incriminate him, where he chose to answer questions he was required to answer the question put to him.
The Tribunal notes that the protection from self-incrimination is an important one reflected in its inclusion in the AAT Act. As such the Tribunal did not draw negative inference from the Applicant’s refusal to answer questions about the detail of events which are the subject of the criminal charges. In the Tribunal’s view, the Applicant is entitled to the presumption of innocence with respect to those charges and to preserving his position with respect to any hearing of the charges.
In his statutory declaration, the Applicant described the incident in relation to which the charges arose as follows:[52]
A few days prior to the incident, my partner and I had an argument. I then stayed for a few days at my workshop. One-night, early morning, my partner came to my workshop to discuss the traffic fine issued under her name and tried to convince me going back home. I was not ready to do that. My partner then threatened me to go and kill herself. I terrified and tried to calm her down let in physical. Our discussion got out of hand and into a physical fight. I am extremely sorry and regretful for that happened. My partner since fully supported me and provided statement to the department and the police, also before the Tribunal.
(Errors in original.)
His evidence before the Tribunal was consistent with this statement. In describing the incident, the Applicant told the Tribunal that he and his partner had a fight about 10 days prior to the incident and that his partner had wanted to come to the shop to see him but he had resisted. She had come anyway and had insisted on entering the shop. He indicated that:[53]
She asked a couple of times to come inside, which I refused then she started pushing and coming into the shop, using some force and I tried to avoid her from – prevent her from entering the shop. That’s when the fight started between us. I pushed her to get out of the shop and asked her to leave the shop. This happened a few times she said she is going to kill herself if I don’t let us stay in the shop. Because she was – when she was inside because she was speaking in a loud voice she asked me to close the door of the shop so the neighbours wouldn’t hear us.
Although the Applicant declined to answer questions about the details of the incident, he admitted that there had been a physical fight.[54] The Applicant indicated that he was confident it would never happen again and stated:[55]
I am very regretful and ashamed of what happened on that night. This I also wanted to add that in the two years that I was first in detention centre, also in the years that I have lived in Australia and also in the few months that I have now been taken back to the detention centre, there has never been any incidents or disputes or arguments with other people and I am very sorry that on that night things got out of control.
With respect to becoming unlawful, the Applicant told the Tribunal that he had trusted his migration agent to advise him as to what was required. He had understood that some form of appeal from the IAA decision was underway and was not aware that he no longer held a valid visa until he was taken into custody. He said that he did not understand English and relied on his migration agent to tell him what was required.[56]
The Applicant told the Tribunal that the couple had reconciled. There was evidence before the Tribunal that the Applicant maintained daily contact with his partner by telephone and that she made weekly visits to him in detention.[57]
The Applicant described in some detail his future plans including indicating that he wished to marry his partner once the criminal proceedings are finalised and recommence his business.[58]
The Respondent submitted that the Applicant was not a credible witness and that his evidence should be rejected.[59] The Respondent submitted that the findings of the Department and the IAA with respect to the Applicant’s claims for protection cast doubt on his credibility pointing to inconsistencies and contradictions in the Applicant’s various accounts of why he was in need of protection. The Respondent also submits that the Applicant’s remorse with respect to the incident leading to the charges is not genuine and is more directed at his remorse for the consequences of his actions. Further the Respondent submits that the Applicant engaged in ‘criminal or serious conduct whilst in detention’ noting that he has not complied with bail conditions and continued to engage to trade until the business was unable to continue.
The Tribunal accepts the Respondent’s submissions with respect to general concerns raised by the Applicant’s evidence in the context of his claims for protection. The Tribunal finds no reason to displace the findings on inconsistencies and contradictions contained in the IAA report. Further, the Tribunal accepts that there is an apparent inconsistency between the Applicant’s claims that he was an atheist at the time his application for protection was made and his current claim to have been attending a Christian church since 2017 (a claim which appears not to have been made before the Department or IAA).
Further, the Tribunal had concerns regarding the credibility of some aspects of the Applicant’s evidence, including surrounding the circumstances where he became unlawful. The Tribunal notes that the information regarding the IAA’s decision and the fact that his Visa had expired had been sent directly to the Applicant. In the Tribunal’s view it is not open to a visa applicant to make no attempt to understand the terms of direct communication with them, including in availing themselves of language services provided by the government and of which the Applicant was advised in at least one of the communications from the IAA. Further, the Tribunal did not find the Applicant’s claim to have limited understanding of written English to be consistent with some of the evidence before it, including evidence that he communicates in English by text messages with his stepson.
The Tribunal is less persuaded to make credibility findings based on a submission that the Applicant has engaged in criminal or serious conduct whilst in detention where this is based on his apparent non-compliance with bail conditions and the continued conduct of his business. Without further information about how the business was being conducted it is not clear that the persons conducting the business in his absence were not lawfully able to do so. Further, in the Tribunal’s view, the enforcement of his bail conditions are a matter for the court which made those conditions. The Tribunal accepts the Applicant’s claims to be confused as to the way the conditions worked, though this is not an excuse for not abiding by them particularly where the Applicant is legally represented with respect to those proceedings. However, there is no evidence of any action being taken by the court with respect to any alleged breach by the Applicant in meeting with his partner when she visited him at the detention centre or in taking her calls while there. In any event, in the Tribunal’s view, whether the Applicant committed an offence in doing so is not a matter to be determined by the Tribunal. Accordingly, the Tribunal places limited weight on this as evidence he has been engaged in ‘criminal or serious conduct’ while in detention.
Having viewed the CCTV footage it is clear that the incident leading to the charges involved a level of physical violence which is downplayed by both the Applicant and his partner (see below). The Tribunal accepts that this may be in part due to the fact both that charges are pending and that the Applicant and his partner are desirous of him being granted the Visa and being acquitted of the charges which he is currently facing. However, the Tribunal also accepts that the Applicant and his partner are both genuine in their desire to recommence their relationship. It was also clear that the Applicant’s partner strongly holds the view that she was a participant in the incident as well as a victim. Whether or not she is correct in holding such a view, the Tribunal regards that her perception was genuinely held. In this regard, while the Tribunal has some general credibility concerns about some of the Applicant’s evidence with respect to migration matters, the Tribunal accepts that he regrets the incidents which led to the charges and is focused on recommencing his life with his partner in the community.
Evidence of the Applicant’s partner
In her evidence before the Tribunal, the Applicant’s partner who is the complainant in the charges for the alleged ‘assault occasioning bodily harm’ and ‘depravation of liberty’, told the Tribunal that she supports the Applicant being granted the Visa.
The Applicant’s partner provided several statements to the Tribunal, including in the form of a statutory declaration. This statutory declaration maintained an account of the events of 22 October 2019 which supported that offered by the Applicant. She repeatedly referred to her part in attending the workshop and attempting to force her way into the workshop. She repeatedly asserted that she had threatened to kill herself if the Applicant did not let her into the shop.[60] She testified that they ‘got into a bit of pushing and pulling each other around’[61] and that when the Applicant refused to talk to her she ‘got angry and we both struggle [sic] and hit each other a number of times’.[62] She maintained that at no point was she detained in the shop but had left of her own volition. She said that she went to the police because she was angry and stated that ‘[b]ecause of my anger, I did not provide the full version of what really happened there. That was the reason I did not give a recorded interview with the Police’.[63]
She testified that the Applicant had been financially supporting herself and her son prior to entering detention. She said he also provided emotional support to her and her son and noted that they were dependent on him emotionally and financially.[64] She said their financial situation had become very difficult since he had been in the detention centre. She said he had engaged in activities with her son which her son was now missing out on. She said if the Applicant were released from detention they had plans to marry once the criminal charges were dealt with.
She said that prior to the incident, they had a very good relationship and that ‘that incident that happened was a one-off incident and I take responsibility for that’.[65] She gave evidence that at the time she was under stress due to the loss of her mother, nephew and niece in a short period of time. She said that when she went to the workshop she was upset and got in an argument with the Applicant who did not want her to come in. She said there was
‘a bit of pushing and pulling each other around’.[66] She said the bruising on her arms was due to having played volleyball.
It was put to the Applicant’s partner in cross-examination that aspects of her evidence were untrue. She stated that she was not claiming the relationship was perfect but whilst they had minor disputes, the Applicant had never punched her. The Applicant’s partner was shown the CCTV footage of the incident during cross-examination. It was put to her that what was depicted in the CCTV footage was different to the account that she had given. Throughout cross-examination she maintained that she had been free to leave the workshop at all times and that she had instigated the argument. She continued to characterise the events as a physical fight between her and the Applicant. As an example, at one point in response to a question as to whether the video showed her being kicked by the Applicant she stated:[67]
Applicant’s Partner [through Interpreter]: I think the questioning is not balanced because (indistinct) couldn’t kicked her or punching him and nobody is looking at those ones and everyone is picking the points where he is doing something and I see (indistinct) an unfair and unbalanced confession.
Ms Taggart: so you can answer my question, you just don’t want to?
Applicant’s Partner [through Interpreter]: I’m just saying it’s unfair to point fingers of blame or blame one person in that situation. There are two people in there which they should – everything should be considered in the circumstances of what is happening, not just blaming or pointing fingers to specific things that one person has done.
Ms Taggart: You don’t want to give any evidence that is critical of or that might hurt [the Applicant’s] chance of getting a visa, do you?
Applicant’s Partner [through Interpreter]: I’m just saying that I am not trying to assist him in any way by not answering your question, I’m just trying to make the point that everything should be looked at – everything that everybody has been done should be looked at and I’ve also, as I’ve mentioned, I was not being considerate, I wasn’t considering the situation, I was angry and I was angry about – and I was very insisting a lot to stay in there and to have a conversation with him. I feel like it’s unfair to blame him for everything that happened and I’d like this conversation or the consideration be given to everything that everyone has done and said before any decision is made in relation to [the Applicant’s] application.
The Respondent submitted that the Applicant’s partner’s evidence is unreliable, as she is financially dependent on the Applicant and feels responsible for the Applicant being in detention. Further, the Respondent submitted that her evidence was ‘entirely inconsistent with the contemporaneous CCTV footage’.[68] The Respondent submitted that the evidence was self-serving and misleading because it attempted to paint the Applicant in the best possible light. Further, the Applicant’s partner had provided different accounts of their relationship over time, including with the police and Pastor P. The Respondent submitted that her account to the police was consistent with the CCTV footage. The Respondent also noted that she had told the police that the Applicant suspected her of having an affair and this was also an account she gave to Pastor P. The Respondent also noted that she had reported to police that the Applicant had threatened to kill her on occasion and had been physically and verbally abusive to her.
The Tribunal has some difficulty with these submissions from the Respondent. The Tribunal notes that the inconsistency in statements made to the police, particularly regarding threats by the Applicant to kill her, were not put to the Applicant’s partner in
cross-examination. As such she did not have an opportunity to confirm whether those statements were made or accurately recorded. Further, to suggest that her evidence was entirely inconsistent with the CCTV footage is not, in the Tribunal’s view, a fair characterisation of her evidence or the CCTV footage. The incident is only partially and at times unclearly captured in the CCTV footage, despite recordings from several camera angles. The Tribunal considers that while it would be fair to say the Applicant’s partner’s account of the events downplays or minimises the heightened physical nature of the incident, including some of the Applicant’s apparent strikes against her, there are elements of her account which are supported by the video, including that she appeared to move freely around the shop for most of the incident and to return to argue with the Applicant several times.
In the Tribunal’s view, the Applicant’s partner’s evidence indicated a firm belief on her part of a more nuanced characterisation of the incident. She clearly feels at least partly responsible for the incident and its outcomes. She also clearly loves and wants to support the Applicant. In that respect, the Tribunal accepts her evidence as credible. The Tribunal also accepts that she believed the incident to be a one-off event, which she and the Applicant regret. She is confident they have a future together as a family and the Tribunal did not get any sense from her evidence that she feared further violence from the Applicant. This was, in the Tribunal’s view, reinforced by her desire for the Applicant to return to the home to play a positive role in the support of her son.
Whether her particular characterisation of the incident will be borne out of the disposition of the criminal charges or will impact the conduct of the case against the Applicant remains to be determined. In the Tribunal’s view that is a matter for the court hearing and determining the evidence in that matter, including evidence from the police whose account was unable to be tested before the Tribunal.
As the Applicant’s partner is, on the Respondent’s submission, the most likely victim of future serious criminal conduct by the Applicant, the Tribunal placed weight on her evidence that she does not regard the incident as an indicator of future risk, does not regard herself as being at risk and remains committed to the Applicant and the relationship.
Evidence of Pastor P
The Applicant’s Pastor also gave evidence to the Tribunal. The Tribunal found the Pastor’s evidence to be very frank and considered and accepts the truthfulness of his evidence to the Tribunal as summarised below.
Pastor P told the Tribunal that he first met the Applicant in around 2018 when he started attending services with his partner at the Pastor’s church, a local Christian community church with around 400-500 members. Pastor P had met the Applicant’s partner earlier, when she was looking for a new church. She started coming to his church. He met the Applicant later, about two years ago, when he came to the church with his partner. He described the Applicant as a ‘gentle giant’.[69] He indicated he had recently baptised the Applicant at the detention centre at his request.
He testified that he was aware of the charges faced by the Applicant and had been told about the incident by the Applicant’s partner. He testified that she said she thought the Applicant was having an affair, she had gone round to the workshop to see him and he had ‘placed his hands on her to direct her out of the workshop’ and there had been ‘a bit of yelling’. She had gone to the police because she was angry and they had seen the bruising on her arms. Pastor P stated that she said the bruises were from volleyball and he had asked about that but noted that his own wife also played volleyball and got bruises on her arms at times.[70]

The Tribunal notes that the Applicant offered a number of character references including Pastor P. These attest to his standing in the community. Further, his lack of criminal history supports his contention he has been of generally good character while living in the community. The Tribunal places weight on the character references and the Applicant’s lack of prior criminal record.
Having considered the evidence, all the circumstances of the Applicant’s criminal and general conduct and the guidance contained in Section 2, Paragraph 5 of Direction no. 79, the Tribunal is not satisfied that having regard to the Applicant’s past and present criminal conduct and/or their past and present general conduct that the Applicant is not of good character. Accordingly, the Applicant meets the condition prescribed in s 501(6)(c) of the Migration Act.
Risk of criminal or other specified conduct (s 501(6)(d)(i), (ii) and (v))
The issues surrounding consideration of risk under s 501(6)(d) have been extensively considered by the Tribunal and superior courts.[109] The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.
Section 501(6)(d)(i), (ii) and (v) of the Migration Act are not satisfied unless, in the event that the Applicant were allowed to remain in Australia, there is a risk that he would engage in the forms of conduct in Australia outlined in those provisions.
That test was discussed by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, at 450-1 [122]-[128]. Her Honour drew attention to the relevant principles to be considered in construing the tests in s 501(6) of the Migration Act as follows at 451 [129]:
Each of the criteria set out in s 501(6) which may cause a person to fail the character test involve the protection of the Australian community. “Protection” is not a narrow concept and extends beyond preventing members of the Australian community from being threatened with, or the victims of, physical violence or conduct which is criminal under Australian law. It may involve, as s 501(6)(d)(iii) contemplates, ensuring that particular members of the Australian community are not vilified. It may also involve protection at a highly individual level: for example, if there is a risk a particular person in Australia would be harassed or stalked by a prospective visa applicant (s 501(6)(d)(ii)).
Further, at 451 [130], Her Honour wrote:
In relation to s 501(6)(d), a qualitative assessment of risk is an express part of the character test itself. Each of the items in s 501(6)(d) in that sense are identified by the Parliament as potential “harm” to the Australian community.
Accordingly, the question to be asked is whether there is a risk that the Applicant would engage in criminal conduct and cause harm to the Australian community.
In considering whether the Applicant passes the character test, it is necessary to consider all the circumstances of the Applicant’s offending and any other issues which relate to the assessment of the risk that the Applicant would engage further in criminal conduct.
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[110] In Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970, Senior Member Puplick noted that the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk. On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act stated:
The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
… Section 501(6)(d)(i) provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.
In Sabharwal the Full Court found that in that case the Minister had found that there was a risk that the Applicant would engage in criminal conduct in Australia. The Full Court stated that the Minister had said he ‘could not rule out the possibility of further offending by
Mr Sabharwal’.[111] The Full Court, citing Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62] per Moshinsky J, found that the Minister’s statement was in substance also a finding that there was a risk of the Applicant reoffending.
In QKVH, Deputy President Forgie discussed the meaning of ‘criminal conduct’ in s 501(6)(d) and the meaning of ‘risk’ in s 501(6)(d)(i) of the Migration Act. She stated at
[11]–[13]:
Consistently with the statement in cl 6.1(2) of annex A of the Ministerial Direction, the reference to “criminal conduct” in s 501(d)(i) is not limited to conduct which has led to a criminal conviction. It extends to conduct “... for which a criminal conviction could be recorded ...”. … it may be that the conduct led to a court’s finding the conduct proved when a person was charged with an offence but doing so without conviction. That conduct would be “criminal conduct”. It may be that the person has engaged in conduct, for which he or she could have been charged with an offence and, if the charge were proved, convicted of a criminal offence but never was. If the Tribunal is satisfied that this conduct occurred, that conduct could be regarded as “criminal conduct”.
With respect to the meaning to be attributed to the word ‘risk’ and discussing conduct under s 501(6)(d)(i), she noted:[112]
The word “risk” is not defined but [sic] its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
... 1 the chance or possibility of suffering loss, injury, damage, etc; …
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 [the precursor to Direction no. 79] says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.
With respect to the provisions in s 501(6)(d) the Respondent submitted:[113]
46.The relevant risk here is the [A]pplicant will continue to engage in violent or abusive conduct against his partner. The available evidence in this regard is primarily from the applicant, [the partner] and Mr Cinar.
47.… neither the [A]pplicant’s nor [his partner’s] evidence that the [A]pplicant will not engage in violence against [his partner] in the future is reliable. The same conclusion must also apply to the evidence that the [A]pplicant has never engaged in violent or abusive conduct towards [his partner] in the past
48.Where the [A]pplicant is an unreliable witness, that only adds to the concern about Mr Cinar’s report which was, at least in part, based upon acceptance of the applicants information and accounts. …
49.In relation to the conduct of the [A]pplicant towards his partner in the past, [his partner] has previously contended that she was abused by the [A]pplicant prior to the Incident. For the reasons set out above, [the Applicant’s partner’s] evidence to the contrary on 1 May 2020 is not reliable.
50.Whether or not the [A]pplicant did assault his partner on more than one occasion cannot be determined. That is because the [A]pplicant has presented unreliable evidence. However having regard to the fact that such claims were previously made, the overwhelming evidence that the Incident occurred, the lack of any reliable evidence upon which a predictive assessment as to the future could be made and the [A]pplicant’s concerted efforts to deny and hide his wrongdoing compel a conclusion that there is a real risk and likelihood the applicant would engage in criminal conduct or harass, molest intimidate [sic] or stalk another person (his partner) if released into Australia.
The Respondent’s closing submissions did not make specific reference to s 501(6)(d)(v) of the Migration Act.
The Respondent went on to submit that the fact that there are bail conditions in place with respect to the Applicant ‘does not compel (or justify) a contrary conclusion’. The Respondent submitted that the bail conditions had not been complied with and that they ‘could not logically or reasonably be relied upon in reaching a conclusion that there is not a relevant risk to [his partner] into the future because he is precluded from approaching her’.
The Respondent stated:
It is a relevant consideration in assessing a future risk. If that risk is found to arise, then the [T]ribunal must assess whether or not the applicant ought to forfeit the privilege of being granted the visa in any event. None of this is beyond jurisdiction.
The Respondent further submitted that as the Applicant and his partner had provided inconsistent answers as to where the Applicant would reside following his release from detention, the Tribunal could not be satisfied that the Applicant would abide by the conditions of his bail to ensure that he remains away from his partner.
As noted above, the Tribunal regards that caution must be exercised in placing significant weight on criminal charges which have not been finalised with respect to the application of the character test. This also applies to relying on those charges as an indication of future risk of conduct identified in s 501(6)(d).
Further, for the reasons set out above, the Tribunal does not accept that the evidence of the Applicant and his partner should not be accepted on the grounds they lacked credibility. While the Tribunal has some reservations about aspects of the Applicant’s conduct in migration matters and regards that the Applicant and his partner, for their own reasons, have downplayed the level of violence involved in the incident, it is clear that both regard it as a one-off incident and both regret their parts in it and the impact it has had on their family.
Further, the Tribunal does not accept, for the reasons stated above that the evidence of Pastor P and Mr Cinar should be given little weight.
In this case, the Tribunal considers that there is a minimal risk that the Applicant will engage in the conduct identified in s 501(6)(d). The only identified potential victim of any potential future violent conduct is the Applicant’s partner. She has clearly expressed to the Tribunal that she wishes for the Applicant to remain in Australia so that he can remain in a parental role for his stepson, so that they can resume their relationship and also so that he can provide for the family financially. She said that she is struggling financially and emotionally without him. Further, she has expressed that she loves the Applicant, has reconciled with him and hopes to marry him in the future. It may well be that the Applicant’s partner’s characterisation or recollection of the events leading to the current charges is imperfect or downplays the significance of the violence present on that occasion. However, the Tribunal considers that it is significant that the Applicant’s former partner does not consider him to be any risk to her. The Tribunal makes this assessment cognisant of the complex dynamics which may be present in circumstances of alleged family violence. However, the Tribunal’s assessment was that the Applicant’s partner was giving evidence freely and that she firmly believed her account of the events and of the relationship was accurate.
The Tribunal is not satisfied that there is a risk, if the Applicant were allowed to remain in Australia, and was released into the community, that he would engage in criminal conduct. The Tribunal’s reasons are in summary:
(a)as the Applicant has been in immigration detention for a significant period, not only constraining his liberty but impacting his ability to conduct his business and exacerbating his stress-related skin condition, the Tribunal regards it as unlikely he would do anything which might cause him to be detained again;
(b)the Applicant has a stepson living in the Australian community, and the Applicant understandably desires to support his partner in his care;
(c)the Applicant has no history of past offending and he has committed no offences while in immigration detention;
(d)the Applicant and his partner have expressed a desire to marry and have the support of their church in preparing for this, including marriage counselling which would be conducted by Pastor P who is aware of the incident which gave rise to the charges and has now had the benefit of seeing the CCTV of that incident;
(e)the Applicant’s involvement in the church community, history of stable employment (accepting, however, he may not be able to work under the conditions of a bridging visa) and his relationship with his partner and stepson provide strong protective factors against future conduct of the kind identified in s 501(6)(d); and
(f)with respect to the criminal charges, the Applicant was granted bail, with conditions, suggesting he did not represent an unacceptable risk to the Australian Community while awaiting trial.
The Report of Mr Cinar supports a finding that the Applicant is a low risk for serious violence.
In light of the evidence, which is consistent between the Applicant and his partner, and the Applicant’s lack of any history of criminal convictions, and having regard to the provisions of the Migration Act and to the considerations and guidance in Direction no. 79, including in Annex A, the Tribunal considers that the Applicant poses minimal risk to the Australian community. Accordingly, the Tribunal is not satisfied that the conditions in s 501(6)(d) are met.
Does the Applicant pass the character test?
The Tribunal is not satisfied that the conditions specified in s 501(6)(c) or 501(6)(d)(i),(ii) or (v) apply to the Applicant. There is no evidence before the Tribunal that any of the other conditions specified in s 501(6) of the Migration Act apply to the Applicant.
Accordingly, the Tribunal finds the Applicant meets the character test for the purposes of s 501(1).
CONCLUSION
The matter must be remitted to the Respondent for finalisation of the Visa consideration made under s 65 of the Migration Act, other than those considerations arising under s 501 of the Migration Act.
The Tribunal is of the opinion that the correct or preferable decision is to set aside the decision of the delegate and remit the matter for reconsideration with a direction that the Applicant passes the character test.
DECISION
The Tribunal sets aside the decision of the delegate of the Respondent dated
11 February 2020 to refuse to grant the Applicant a Class WE Subclass 050 Bridging (General) (temporary) visa and remits the matter to the Respondent for reconsideration in accordance with section 65 of the Migration Act 1958 (Cth) with a direction that the Applicant passes the character test for the purposes of s 501(1) of that Act.

I certify that the preceding 208 (two hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

........[Sgd]................................................................
Associate
Dated: 11 May 2020

Dates of hearing: 23 April and 1 May 2020

Counsel for the Applicant: Mr Nikjoo

Solicitors for the Applicant: Nikjoo Lawyers

Counsel for the Respondent: Ms Taggart

Solicitors for the Respondent: Sparke Helmore Lawyers

ATTACHMENT A – EXHIBIT LIST
The Tribunal admitted the following documents into evidence.
·Exhibit A1 – Applicant’s objection to CCTV footage dated 21 March 2020 (submissions);
·Exhibit A2
– Applicant’s Statement of Facts, Issues and Contentions received

31 March 2020;
·Exhibit A3 – Applicant’s Statutory Declaration (signed and witnessed) version dated 31 March 2020;
·Exhibit A4 – Statement of the Applicant’s stepson dated 10 January 2020;
·Exhibit A5 – Statement of Pastor P dated 27 March 2020;
·Exhibit A6 – Statement of Mr L dated 24 March 2020;
·Exhibit A7 – Applicant’s submissions on BAL19 v Minister for Home Affairs [2019] FCA 2189 received 31 March 2020;
·Exhibit A8 – Psychologist report of Mr Cinar dated 27 March 2020;
·Exhibit A9 – Curriculum Vitae of Mr Cinar;
·Exhibit A10 – Copies of text messages to and from the Applicant and his partner’s son;
·Exhibit A11 – Statement of Mr A dated 22 March 2020;
·Exhibit A12 – Statement of Mr A2 dated 30 March 2020;
·Exhibit A13 – Statement of Mr A3 dated 24 March 2020;
·Exhibit A14 – Certificate of Baptism for the Applicant dated 19 February 2020;
·Exhibit A15 – Statement of Mr Ab dated 29 March 2020;
·Exhibit A16 – Statement of Mr Z dated 30 March 2020;
·Exhibit A17 – Submissions from the Applicant on COVID-19 dated 16 April 2020;
·Exhibit A18 – Articles relating to COVID-19 in immigration detention;
·Exhibit A19 – Applicant’s submissions in reply received 20 April 2020;
·Exhibit A20 – Statement of the Applicant’s partner received 20 April 2020;
·Exhibit A21 – Statement of Mr Ab2 dated 16 April 2020;
·Exhibit A22 – Articles relating to Serco and Australia Border Force detention procedures;
·Exhibit A23
– Statutory Declaration of the Applicant declared and witnessed on

28 April 2020;
·Exhibit A24
– Applicant's Submissions on Appropriate Orders received on

30 April 2020;
·Exhibit R1 – Respondent’s submissions responding to the objection to the CCTV dated 24 March 2020;
·Exhibit R2
– Respondent’s Statement of Facts, Issues and Contentions dated

16 April 2020;
·Exhibit R3 – Initial submissions made on 19 February 2020 regarding the interlocutory hearing issues;
·Exhibit R4 – Email including citations from the Respondent regarding the interlocutory hearing;
·Exhibit R5
– G-documents and relevant material filed by the Respondent on

3 March 2020;
·Exhibit R6
– Supplementary relevant documents filed by the Respondent on

23 March 2020;
·Exhibit R7 – Further supplementary relevant documents filed by the Respondent on 17 April 2020;
·Exhibit R8 – CCTV evidence produced on summons on 6 March 2020 and filed by the Respondent, including the points of the footage to be presented during the hearing;
·Exhibit R9 – Document regarding the next committal mention date in the criminal matter concerning the Applicant, provided by the Respondent at the hearing;
·Exhibit R10 – Email correspondence between the Australian Government Solicitor and the Office of the Director of Public Prosecutions dated 29 April 2020;
·Exhibit R11 – Department of Foreign Affairs and Trade Country Information Report: Iran dated 14 April 2020; and
·Exhibit R12
– Respondent’s Submissions on appropriate orders received

30 April 2020.

[1] Exhibit R5, G28, page 135; G33, pages 226–231.
[2] Within the meaning of s 5AA(1) of the Migration Act 1958 (Cth) (the Migration Act).
[3] Exhibit R5, G28, page 135.
[4] Exhibit R5, G28, page 136. See s 195A of the Migration Act.
[5] Exhibit R5, G28, page 136. The Class UJ Subclass 449 Humanitarian Stay (temporary) visa ceased on 11 February 2015.
[6] Exhibit R5, G28, page 136.
[7] Exhibit R5, G28, page 136.
[8] 35 days after the decision by the Immigration Assessment Authority refusing the Applicant’s protection visa application: Exhibit R5, G58, page 412; G59, page 435.
[9] Exhibit R5, G31, pages 167–171.
[10] Exhibit R5, G35, pages 247-251 (acknowledgement of application). See also Exhibit R5, G32, pages 172-241 (application and supporting material). This is a protection visa: Migration Act ss 5 and 35A(3A).
[11] Exhibit R5, G37, page 274.
[12] Exhibit R5, G44–G45, pp 293–357.
[13] Exhibit R5, G46, pages 359–361. The interview was audio recorded but not transcribed.
[14] Exhibit R5, G47, pages 362–364.
[15] Exhibit R5, G50, pages 374–391.
[16] Exhibit R5, G51, page 392.
[17] Exhibit R5, G51, pages 392–404.
[18] Exhibit R5, G58, pages 415–434.
[19] Applicant’s closing submission, paragraph 22.
[20] Exhibit R5, G59, pages 435. See e/n 8.
[21] Criminal Code Act Compilation Act 1913 (WA) s 333 (the Criminal Code (WA)).
[22] Criminal Code (WA) s 317(1)(a); Exhibit R6, SG1, pages 455–456; SG1, pages 553–565.
[23] Exhibit R5, G10, pages 35–39.
[24] Exhibit R5, G27, pages 130–134.
[25] Exhibit R5, G1, pages 1–7.
[26] Exhibit R5, G1, page 5.
[27] Exhibit R5, G27, pages 130–134.
[28] ComcarevMaganga (2008) 101 ALD 68, 76 [37]–[38] (Maganga); see also Panagiotou and TNT Australia Pty Ltd [2011] AATA 565; (2011) 127 ALD 340 (Panagiotou and TNT Australia Pty Ltd).
[29] Administrative Appeals Tribunal 1975 (Cth) s 2A.
[30] Sections 500(6H) and 500(6J) of the Migration Act (the two-day rule); on the issue of information elicited in cross examination or by the Tribunal: see Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 223.
[31] Exhibit R11.
[32] Exhibit A23.
[33] Exhibit R10.
[34] Exhibit A1.
[35] Heyward v Minister for Immigration and Citizenship (2009) 112 ALD 226, 238-9 [64]–[65] (and the cases cited by Emmett J). See also Panagiotou and TNT Australia Pty Ltd (n 28) [19]–[20].
[36] See Exhibits A11, A12, A13, A15, and A16.
[37] See Exhibits A8, A6, A21; R5, G21.
[38] Exhibit R5.
[39] Exhibit R5, G3, page 15.
[40]Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21; [2014] FCAFC 17 [41] per Perry J (White and Wigney JJ agreeing), referring to Shi 315 [100] (per Hayne and Heydon JJ) and [37] (per Kirby J). See the discussion in Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153 (15 February 2019) referring also to Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60 and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 [37].
[41] Exhibit R5, G24, page 24.
[42] Criminal Code (WA) s 333.
[43] Criminal Code (WA) s 317(1)(a); Exhibit R5, G5, pages 25-27; Exhibit R6, SG1, pages 455-456; SG1, pages 549-465.
[44] Exhibit R6, SG1, pages 450–456.
[45] Exhibit R5, G5, page 25.
[46] Exhibit R9.
[47] Exhibit R5, SG1, page 450.
[48] Exhibit R6, SG1, pages 454–455 [12]–[13]; SG1, page 495 [10]–[12].
[49] Transcript, 1 May 2020, page 42.
[50] Exhibit R5, G13, pages 45–62.
[51] Exhibit R5, G14, pages 63–82.
[52] Exhibit A3.
[53] Transcript, 1 May 2020, page 13.
[54] Transcript, 1 May 2020, page 26.
[55] Transcript, 1 May 2020, page 14.
[56] Transcript, 1 May 2020 pages 14–17.
[57] Exhibit A3, paragraph 13.
[58] Transcript, 1 May 2020, page 42.
[59] Exhibit R2, pages 12–13; Respondent’s closing submissions, page 2–4.
[60] Transcript, 1 May 2020, page 51, 55, 58 and 68.
[61] Transcript, 1 May 2020, page 51 and 55.
[62] Exhibit R5, G23, page 118.
[63] Exhibit R5, G23, page 119.
[64] Transcript, 1 May 2020, pages 48–49.
[65] Transcript, 1 May 2020, page 49.
[66] Transcript, 1 May 2020, page 51.
[67] Transcript, 1 May 2020, page 62–63.
[68] Respondent’s closing submissions, page 5.
[69] Transcript, 1 May 2020, page 72.
[70] Ibid.
[71] Transcript, 1 May 2020, page 79.
[72] Exhibit A8, page 3.
[73] Exhibit A8, page 5.
[74] Exhibit A8, page 6.
[75] Exhibit A8, page 8.
[76] Exhibit A8, page 8
[77] Exhibit A6, page 9.
[78] Exhibit A8, page 9.
[79] Exhibit R2, pages 13–14, paragraphs [72]–[75].
[80] Exhibit R5, G9, page 34.
[81] Exhibit R2, pages 13, paragraph [74].
[82] Ibid.
[83] Exhibit A8, page 10.
[84] Exhibit A8, page 9.
[85] Exhibit R5, G9, page 34.
[86] Exhibit A4.
[87] Exhibit A10.
[88] Exhibit A6.
[89] Exhibit A11.
[90] Exhibit R5, G21, page 112.
[91] Exhibit R5, G6, pages 26–27; G23, pages 117–120.
[92] Exhibit A2 at paragraph [9].
[93] Annex A, Direction no. 79.
[94] Direction no. 79, Annex A, Section 1.
[95] Direction no. 79, Annex A, Section 2, Paragraph 6.1.
[96] The Tribunal notes that the Applicant’s application for the Visa indicated he intended to seek Ministerial intervention, however in closing submissions to the Tribunal Mr Nikjoo indicated he had been instructed to seek leave in the Federal Circuit Court to challenge the IAA decision. The Tribunal notes that Mr Nikjoo was not advising the Applicant when the application for the Visa was made.
[97] Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422, 427–428.
[98] Ibid 425.
[99] Minister for Immigration & Multicultural & Indigenous Affairs vGodley (2005) 141 FCR 552,
559–560 [34], citing Lee J with approval in Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774 [51].
[100] Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187, 197.
[101] Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 per Spender, Drummond, Mansfield JJ [8].
[102] Minister for Immigration & Multicultural & Indigenous Affairs vGodley (2005) 141 FCR 552,
559–560 [34], citing Lee J with approval in Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774 [52].
[103] Respondent’s closing submissions, page 7, paragraphs [39]–[40].
[104] Ibid, page 7, paragraph [42].
[105] Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187, 194.
[106] Ibid 194.
[107] See Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 [128].
[108] QKVH and Minister for Home Affairs [2018] AATA 1855 [12] (QKVH).
[109] See for example Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH (n 108); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
[110] See discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[111] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58].
[112] QKVH (n 108) [13].
[113] Respondent’s closing submissions, pages 8–9, paragraphs [46]–[50].

[2020] AATA 1352

5 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Dates of hearing:	23 April and 1 May 2020
Counsel for the Applicant:	Mr Nikjoo
Solicitors for the Applicant:	Nikjoo Lawyers
Counsel for the Respondent:	Ms Taggart
Solicitors for the Respondent:	Sparke Helmore Lawyers