VQKL and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 133
•4 February 2025
VQKL and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 133 (4 February 2025)
Applicant:VQKL
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8672
Tribunal: Senior Member T Tavoularis
Place:Brisbane
Date:4 February 2025
Decision: Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review dated 28 October 2024 and exercises the power residing in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Permanent Protection (Class XA) visa sought by the Applicant.
...............[SGD].........................
Senior Member T Tavoularis
Catchwords
MIGRATION – refusal of a Permanent Protection (Class XA) under s 501(1) of the Migration Act 1958 (Cth)- where the Applicant does not pass the character test - whether power to refuse the visa under s 501(1) of the Migration Act 1958 (Cth) should be exercised - consideration of Ministerial Direction No. 110 – protection of the Australian community and expectations of the Australian community outweigh all remaining primary and other considerations - Tribunal finding that the power under 501(1) of the Migration Act 1958 (Cth) should be exercised to refuse the visa - decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Khalil v Minister for Home Affairs (2019) 271 FCR 326
NZYQ V. MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] HCA 37
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Migration Regulations 1994 (Cth)Statement of Reasons
INTRODUCTION
VQKL (“the Applicant”) is a 51 year old stateless person with a former habitual residence of Vietnam. He seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent” or “the Minister”) who refused him the grant of a Permanent Protection (Class XA)(subclass 866) visa (the “Visa”) pursuant to s.501(1) of the Migration Act 1958 (Cth). (“the Act”)
A protection finding has been made in respect of the Applicant’s possible return to Vietnam. Another delegate of the Respondent made this finding on 19 May 2023 on the basis of the Applicant meeting one of the two criteria in s.36(1C) of the Act.
There followed the provision of a Notice of Intention to Consider Refusal dated 1 July 2024 from the Respondent’s Department to the Applicant notifying him that although he had successfully applied for the Visa, the Respondent would nevertheless be giving consideration to refusing the grant of the visa on character grounds pursuant to s.501(1) of the Act.
Following the Applicant’s response to this Notice of Intention to Consider Refusal, this consideration to which it referred manifested into a decision by another delegate of the Respondent, made on 28 October 2024, formally refusing the grant of the Visa on the basis that the Applicant did not pass the character test. (“the Decision Under Review”)[1]
[1] G1, pp29-43.
Upon being notified of the refusal decision, the Applicant was granted a Bridging R (Removal Pending) (Class WR) (Subclass 070) visa (“bridging visa”) and released from detention. There followed the grant of further bridging visa on 6 November 2024 pursuant to High Court’s principle enunciated in YBFZ v Minister forImmigration, Citizenship and Multicultural Affairs [2024] HCA 40.
By Application filed with this Tribunal on 29 October 2024, the Applicant seeks merits review of the Decision Under Review. The Hearing proceeded before me by video on 14 January 2025. At the beginning of the Hearing I sought and obtained the parties’ agreement to a draft Exhibit List now representing the totality of the material before the Tribunal. That Exhibit List is attached to these reasons and marked “Annexure A”.
AN IMPORTANT PROCEDURAL ASPECT OF THIS MATTER
This is an expedited application pursuant to s. 500(6L)(c) of the Act which requires the Tribunal to make a decision within the period of 84 days after the day on which the Applicant was notified of the Decision Under Review. The 84th day in this matter fell on 20 January 2025. As mentioned, the instant hearing proceeded before me on 14 January 2025.
There was less than a working week available for the preparation of detailed written reasons from the conclusion of the Hearing to the occurrence of the 84th day. I therefore caused the Tribunal to make (and publish to the parties) a decision - in short form - on 20 January 2025 such as to meet the requirements of s. 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that short form decision.
Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326, I now publish my detailed written reasons within a reasonable time of my short form decision.[2]
[2] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
ISSUES
Section 501(1) of the Act provides that:
(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.”
There are, therefore, two issues presently before the Tribunal:
a.whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
b.whether the Tribunal should exercise its discretion conferred by s501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 28 May 2004, the Applicant was sentenced at the Brisbane Supreme Court (per McMurdo J) to custodial terms of imprisonment cumulatively amounting to 23 years. The Court imposed (1) a head custodial term of six and a half years upon a conviction for grievous bodily harm; (2) a head custodial term of 14 years upon a conviction for attempt to murder; and (3) a head custodial term of two and a half years upon a conviction for wounding and similar acts.
Each of these three head custodial terms were ordered to be served concurrently. The Court’s sentencing order contained respective declarations that the first and second convictions were those of a serious violent offender. These declarations required the Applicant to serve the lesser of 80% of the cumulative head custodial time imposed for the first and second convictions (i.e 6.5 years + 14 years = 20.5 years x 80% = 16.4 years) or 15 years before being eligible for parole.
There is no question the Applicant does not pass the character test by virtue of his “substantial criminal record”,[3] deriving from the imposition of a term(s) of imprisonment upon him of 12 months or more.[4] I am therefore satisfied the Applicant does not pass the character test.
[3] Act, s 501(6)(a).
[4] Act, s 501(7)(c).
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 110”) has application.[5] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[6]
[5] Direction 110 commenced on 21 June 2024. It revokes Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[6] Direction, sub-paragraph 6. See also Direction sub-paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
18. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the strength, nature and duration of ties to Australia;
(iv)the best interests of minor children in Australia; and
(v)expectations of the Australian community.
19.Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
a.the nature and seriousness of the non-citizen’s conduct to date; and
b.the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending: an overview
The Applicant has a criminal history that, in terms of the period over which he committed offences, runs from March 1990 to December 2001. The history records the commission of some 19 individual offences. However, I will adopt a cautious approach towards the offences I can take into account for present purposes. First, for six of those offences, there is a reference in the results column to the matter(s) being “adjourned to” a particular date. Four of those six entries recorded an “adjourned to” result simpliciter. The remaining two of those six entries contain a result of “adjourned to” but are also accompanied by a reference to the imposition of a good behaviour bond. The important point about these six “adjourned to” entries is that none of these charges re-appear later in the history on any of those nominated “adjourned to” dates. One gets the impression these six offences were never finalised. I will not take these six offences into account.
Second, there is an additional group of four entries which carry the words “all charges without conviction” or “without conviction” or “no conviction recorded”. I do not propose to take these four offences into account. That leaves nine offences which I do propose to take into account. I will divide those nine offences into (1) the non-index offending and (2) the index offending. The non-index offending comprises the following
-convicted on 5/6/1991: Assault – probation 12 months;
-convicted on 4/10/1991: Theft – Fined $125;
-convicted on 5/6/1995: Hinder Police - fined $550;
-convicted on 24/3/1997 - Possess regulated weapon: convicted and adjourned;
-convicted on 9/11/1998: Possess heroin - fined $500;
-convicted on 9/10/2001: Drive with low range PCA - fined $200.
The index offending comprises the earlier referred to index offending which involves:
-convicted on 28/5/2004: Grievous bodily harm – conviction recorded; imprisonment 6 years 6 months;
-convicted on 28/5/2004: Attempt to murder – conviction recorded; imprisonment 14 years;
-convicted on 28/5/2004: Wounding and similar acts – conviction recorded; imprisonment 2 years and 6 months.
As also mentioned earlier, the first two of these index offences attracted a declaration of the Applicant as a serious violent offender. These three index offending sentences were also ordered to be served concurrently. The Applicant appealed his three convictions on the ground that the verdicts of the jury were unreasonable and could not be supported on the evidence. He argued a further ground of appeal asserting a deficiency in the directions by the learned trial judge on a possible defence of self-defence. Each of the Applicant’s appeals were dismissed by the Queensland Court of Appeal on 6 May 2005.
The index offending is adequately and accurately summarised in the Respondent’s Statement of Fact, Issues and Contentions (“SFIC”). The relevant paragraphs of that SFIC read as follows:
“33. The sentencing judge, in the Supreme Court of Queensland at Brisbane Transcript of Proceedings dated 28 May 2004, states that on, 2 December 2001, one of the applicant's three co-offenders had an argument with the victim at a soccer field………. Following the argument, at approximately 3.30pm, the applicant and his three co-offenders (two of which were his brothers) arrived by car at the victim's house and a 'gun battle almost immediately erupted' during which the victim and two of his associates were shot……). The judges on appeal observed that it was 'common ground' that in addition to the bullet which hit the victim's first associate in the back, nine other bullets were fired into or at the front door area of the residence, and at least one shot was fired from within it (G8, 65). With respect to the applicant's involvement, the sentencing judge was not satisfied that the applicant fired a gun at the shootout at the victim's house, however her [sic] Honour noted the jury's conclusion that he 'drove at least one of the defendants' to the house for the common purpose of intending to kill the victim, and that he 'remained at the scene in some way assisting and encouraging'……
34.The sentencing judge was satisfied that the applicant and his co-offenders formed a common criminal enterprise to kill the victim, and the enterprise was formed before they attended the victim's house……... The sentencing judge described the four offenders' behaviour as 'that of men who had set about in a planned way on a terrible mission', being an intention to kill the victim………
35.In terms of the consequences of the offending, the judgment records that the first associate was shot in the back and is now a paraplegic; the second associate was shot through the hand; and the victim was shot through the upper chest region ……. With respect to the first associate’s injuries, the sentencing judge identified that the victim ‘has been tragically and permanently disabled by the shot to him. The consequences for him are that from a very early stage in his life at the age of 20, he has lost the use of his lower limbs and will be forever confined to a wheelchair’. The sentencing judge stated the victim did not appear to be an aggressor and has suffered a ‘terrible consequence from the fact that he was in the house when this happened’………….” [7]
[Quotes in the original; internal references removed]
[7] R1, pp6-7, [33 – [35].
Application of factors appearing at paragraph 8.1.1(1) of the Direction.
The Direction contains a series of nine factors referrable to the analysis of the nature of a non-citizen’s history of criminally offending in Australia.
Paragraph 8.1.1(1)(a)
Paragraph 8.1.1(1)(a) refers to conduct that is viewed ‘very seriously’ by the Australian Government and the Australian community. I am comfortably satisfied that the conduct comprising the Applicant’s index offending squarely falls within the auspices of this paragraph, specifically paragraph 8.1.1(1)(a)(i) as “violent crime”. I therefore have no difficulty or hesitation in attributing a “very serious” descriptor to the index offending pursuant to this sub-paragraph. In my view, there is no other finding open to me.
Paragraph 8.1.1(1)(b)
Paragraph 8.1.1(1)(b) refers to conduct that is considered by the Australian Government and its community to be ‘serious’. The Applicant has not committed unlawful conduct in the realm of causing a person to enter into or being a party to a forced marriage.[8] He has not committed conduct that would form the basis of a finding that he does not pass an aspect of the character test that is dependant on my opinion such as is stipulated in s.501(6)(c) of the Act, for example.[9] Nor does he appear to have committed a crime while in immigration detention or otherwise attempted to escape from such detention.[10]
[8] Paragraph 8.1.1(1)(b)(i) of the Direction.
[9] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[10] Paragraph 8.1.1(1)(b)(iv) of the Direction.
However, the criminal history does contain a reference to a conviction for an offence of “hinder police” which surely falls within the auspices of a crime committed against “….government representatives or officials due to the position they hold, or in the performance of their duties.”[11]As such, the totality of the Applicant’s conduct must be now found to be, at the very least, “serious” and more likely “very serious”.
[11] Paragraph 8.1.1(1)(b)(ii) of the Direction.
Paragraph 8.1.1(1)(c)
None of the Applicant’s index offending is precluded from falling within the auspices of this sub-paragraph which is concerned with the sentences imposed by the courts for his crimes. The sentence imposed on the Applicant for his index offending in May 2004 is both significant and severe. Twenty-three years of cumulative head custodial time is surely reflective of the objective seriousness of the index offending committed by this Applicant.
In circumstances where it is well-settled that imposition of a custodial term is the last resort in the sentencing hierarchy, it is, to mind, of significance that the learned sentencing judge was easily persuaded to declare the Applicant a “serious violent offender”. This declaration compelled the Applicant to serve the lesser of 80% of the cumulative head custodial time for the offences grounding the declaration (about 16.3 years) or 15 years in actual custody.
The significance of a serious violent offender declaration is that instead of working backwards from a head sentence and setting a “bottom” of say, one third or half of the head sentence to be served in actual custody, a sentencing judicial officer is compelled to go well past half way and order that a convicted person with a serious violent offender declaration serve 80% of the head sentence in actual custody. Such was the level of seriousness of the offending in the mind of the sentencing judge who dealt with the Applicant on 28 May 2004.
There is no requirement to have regard to the balance of the Applicant’s sentences for the offences I have taken into account for present purposes. This is because of the seriousness and significance of the sentences imposed on the Applicant in May 2004 easily cause this paragraph 8.1.1(1)(c) to strongly militate in favour of a finding that the Applicant’s unlawful conduct in this country should now be found to be very serious.
Paragraph 8.1.1(1)(d)
This paragraph looks for evidence about the impact of a non-citizen’s offending on any victim or their family. I will not lessen the weight or significance of this paragraph in the assessment of the nature and seriousness of the Applicant’s conduct on the basis that the sentencing judge may not have been satisfied the Applicant fired a gun at the victim’s house. The jury concluded that the Applicant “drove at least one of the defendants”[12] to the subject property and was clearly involved in the common purpose of intending to kill the victim and that, further, the Applicant “remained at the scene in some way assisting and encouraging.”[13]
[12] G1, p50, line 51
[13] G1, p50, line 52.
The consequences of the offending enterprise in which the Applicant was involved are very serious and significant. One victim was shot in the back and is now a paraplegic. Another victim was shot through the hand and another victim was shot through the upper chest region. While it may be said that injuries to a victim’s hand and upper chest may eventually lead to a full recovery, the victim who was shot in the back and rendered a paraplegic will never recover. He has forever lost the use of his lower limbs and will spend his lifetime confined to a wheelchair. The Applicant’s conduct has very seriously and catastrophically affected the victims of that conduct.
It should not be forgotten that the text of this paragraph also refers not only to impacts on a victim(s) but also to impacts on “their family”. While people affected by paraplegia often show a remarkable resilience and stoic determination to get on with their lives, the families of such victims are left with the inevitable requirement of adjusting their own lives to accommodate the different care needs of a paraplegic person compared to an able bodied person. I will find that this Applicant’s conduct has also impacted the family of the now paraplegic victim.
I am comfortably satisfied that this paragraph 8.1.1(1)(d) very strongly militates in favour of a finding that the Applicant’s unlawful conduct in this country should now be found to be very serious.
Paragraph 8.1.1(1)(e)
This paragraph requires a decision maker to determine (1) the frequency of a non-citizen’s offending[14] and (2) whether it contains any discernible pattern of increasing seriousness. The Applicant’s offending history – in terms of the dates he committed his offences – runs for about a decade, from 1991 to 2001. During this period, he committed nine offences that were dealt with at seven separate sentencing episodes. The commission of nine offences across a ten year span is persistently frequent offending but not overwhelmingly so.
[14] That is, with reference to the nine offences I have taken into account.
The story is much different when we look for any trend of increasing seriousness. Of the nine offences I am taking into account, the first six convictions were for relatively unremarkable offending such as assault, theft, hinder police, possession of a regulated weapon, heroin possession and drink driving. Each of these convictions were punished non-custodially and were dealt with by either fines, a probation order and a six month disqualification from driving.
The three offences comprising his index offending for which the Applicant was sentenced in May 2004 represent a quantum leap in seriousness compared to what preceded it. There is surely no cavilling with this observation and finding. Although his offending has been persistently but not overwhelmingly frequent, I am comfortably satisfied there is a very sharp increase in seriousness between the first six offences (the non-index offending) and the three offences for which he was sentenced in May 2004 (the index offending).
This means this paragraph 8.1.1(1)(e) strongly militates in favour of a finding that the totality of this Applicant’s conduct in this country has been very serious.
Paragraph 8.1.1(1)(f)
This paragraph look for any cumulative effect(s) emanating from the Applicant’s offending. First and most obviously, the Applicant’s index offending has had a catastrophic effect on at least one victim. It was a miracle no one was killed during this gunfight. When I say “no one” I not only mean the participants in this gunfight but also innocent passers by who may have fallen victim to it given this episode occurred in a typical street of suburban Brisbane. It goes without saying that if his conduct were repeated, catastrophic and quite conceivably fatal consequences could befall both participants and entirely innocent and uninvolved parties.
Second, I have already noted that the six convictions for the non-index offending did not involve the imposition of custodial time. The Applicant experienced absolutely no deterrent effect from these relatively benign sentences. Instead, he proceeded to commit his very serious index offences. While the sentences for his index offending were exponentially more significant that for his non-index offending, the fact remains that he took nothing from his earlier and more benign convictions and proceeded to commit offences that attracted 23 years of head custodial time and an accompanying serious violent offender declaration.
Third, the pattern of his offending is suggestive of someone who has failed to develop any modicum of respect for the laws and regulations governing the Australian community back into which he now seeks admission. He has not respected the rights of his fellow community members to their own personal space. He has failed to respect the rights of lawful owners of property. He has failed to respect the authority represented by the Police. He has ignored the justice system as a means of resolving a dispute with a fellow community member and instead became involved in an extremely violent scheme to exact retribution on other people which had obvious catastrophic consequences.
Fourth, it can be observed and safely found that this Applicant’s offending has consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. The Police response to the suburban gunfight must have surely been significant. The Applicant ran a trial before judge and jury and then (unsuccessfully) took the first instance outcome on appeal. He may be in the community now, but his time in prison and then immigration detention spanned the best part of almost two decades.
I am therefore satisfied that the above four cumulative effects of the Applicant’s offending cause this paragraph 8.1.1(1)(f) to very strongly militate in favour of a finding that totality of his unlawful conduct in this country has been of a very serious nature.
Paragraph 8.1.1(1)(g)
This paragraph looks at whether the Applicant has provided false or misleading information to the Respondent’s Department by not disclosing prior criminal offending. I am not aware of any aspect of the evidence pointing to anything of this sort. I will put this paragraph to one side and render it neutral for present purposes.
Paragraphs 8.1.1(1)(h) and (i)
As best as I understood the evidence, the Applicant has not received any written or other warning from any competent authority about the consequences of further offending on his visa status to remain here. As well, there is nothing in the material about the Applicant’s commission of offences in another country. Both of these paragraphs should be put to one side and rendered neutral for present purposes.
Some further observations about the objective seriousness of the offending
In it’s SFIC, the Respondent has helpfully summarised the six circumstances identified by the learned sentencing judge which indicated the seriousness of the Applicant’s offending.[15] Those circumstances are relevant to the present assessment of the nature and seriousness of the Applicant’s conduct and are worth repeating here. After initially observing that the case involving the index offending was “…a relatively serious one, even in the context of such a serious offence as attempted murder…”[16] the learned sentencing judge then identified the six circumstances indicative of the index offending’s seriousness: (1) the men[17] planned to use at least two guns to kill another man; (2) the plan to do so was formed by a number of men; (3) their plan was to go to a particular place, which was known or must have been known to be a house in a suburban street of Brisbane where it was at least likely there would be persons within that house other than the victim who were (according to the learned sentencing judge) at “….very serious risk of death or injury from the shooting….”[18] which the Applicant and his co-offenders planned; (4) the plan created a terrible risk, not just to the occupants of the victim’s house, but to the safety of men, women and children otherwise in that street and that suburban neighbourhood; and (6) the consequences of these offences could have been even more serious than they were.
[15] See R1, p7, [36].
[16] G1, p55, lines 49-50.
[17] That is, the Applicant and his co-offenders.
[18] G1, p52, lines 22-23.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. I have also had regard to (and agreed with) the six circumstances identified by the learned sentencing judge which His Honour thought were indicative of the seriousness of the index offending. The relevant paragraphs in paragraph 8.1.1(1) informing my own assessment of the Applicant’s offending plus the sentencing judge’s six circumstances now safely and cumulatively lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken)
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Applicant’s non-index offending is relatively unremarkable but that is not to suggest that harm would not result to either individuals or the community more generally were he to recommit it. Were he to re-commit an offence against the person in the form of an assault, physical harm would likely befall a victim. Were to re-commit and offence against the property of others, such a victim would be deprived of the ownership, use and enjoyment of property rightfully belonging to them. Were to again hinder Police or refuse to answer bail, the community’s policing and Court resources would have to be unnecessarily deployed to deal with it. Were he to again operate a motor vehicle while under the influence of intoxicating liquor, then quite significant and potentially catastrophic harm could befall him and other road users.
The nature of the harm that would result from a re-commission of his index offending is more starkly apparent. It has already resulted in catastrophic harm to one victim who was rendered a paraplegic as a result of it. Other people were shot as a result of that offending as well but did not suffer catastrophic consequences. It is not at all a stretch of the evidence to suggest and find that recommission of his index offending could quite conceivably result in catastrophic and even fatal harm to a victim or victims.
I am satisfied (and I find) that the nature of the harm resulting from recommission of the Applicant’s index and non-index offending would range from (1) an inordinate level of consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) materially measurable harm; (3) psychological harm; (4) actual physical harm from which a victim recovers; (5) actual physical catastrophic harm from which a victim never recovers; and (6) quite conceivably, fatal harm. I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s re-commission of his index offending is so serious that any risk of its re-commission would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s case contained a number of themes which are now said to speak to the Applicant’s level of recidivist risk. First, it was submitted that the Tribunal should have regard to the learned sentencing Judge’s remark to the effect that the factual circumstances in which the Applicant committed his index offences did not seem to be as serious as those of a comparative case His Honour identified. I think this submission can be safely rejected on the basis that His Honour was making a comparative remark between the Applicant’s case and another case purely for the purpose of formulating a sentencing regime for the Applicant’s index offending.
Second, while not cavilling with the Applicant’s guilt, it was submitted that this Tribunal can be satisfied that the Applicant was the lesser of the offenders in the circumstances of the offending episode in which he was involved. I am very cautious about submissions urging me to look for subtlety in the words of a sentencing judge. It is not for this Tribunal to re-visit or infer anything about what the Applicant did or what his state of mind was when he committed the index offences. This is so because of the Full Curt authority of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (‘HZCP’) which addresses how this Tribunal should receive and evaluate (1) the Applicant’s evidence about certain factual aspects and/or indicia of his offending; and (2) submissions regarding inferences or assumptions about the Applicant’s offending now being open to this Tribunal. I will proceed on the basis of how the learned sentencing judge at first instance (and the Court of Appeal) identified and described the Applicant’s conduct. In my view, HZCP prevents the Applicant from now telling a new or modified ‘story’ about ‘the story’ on which he was convicted. For the present exercise of assessing recidivist risk, this Tribunal must determine the Applicant’s current risk of re-committing the index offences based on what he was found to have done when he was sentenced and not what he now says he did.
Third, it should be noted that the Applicant has been in the community for a period of months following his release pursuant to the High Court’s decision in NZYQ. As best as I recalled the evidence, there is no suggestion that he has offended during this period or that he has re-connected with elements that could again lead him to offend. While there is some force in the contention that the Applicant has not re-offended (or indicated any likelihood of doing so) since his return to the community, the reality is that (1) insufficient time has elapsed to truly test his capacity to avoid offending; and (2) he has had the spectre of these visa proceedings akin to a sword of Damocles bearing over him. The question for this Tribunal is how the Applicant would behave in the community over the long term were he successful in these proceedings with his protection visa status restored to him.
Fourth, a submission was put to the effect that this Tribunal should have regard to the findings of the Respondent’s delegate before whom the Applicant succeeded in securing a protection visa pursuant to s.36(1C) of the Act. In particular, it was submitted that given the delegate determined the Applicant was not a danger to the Australian community, this Tribunal should determine that the Applicant now represents an acceptable level of recidivist risk to facilitate a return to the community. While there is some force to it, several things can be said about this submission. The most obvious one is that the delegate’s decision regarding the protection visa does not bind this Tribunal. As well, the exercise compelled by s.36(1C) of the Act is different to this Tribunal’s task. In the former, the assessment involves answering the question of whether, in the circumstances of the here and now, the Applicant would represent a danger to the community. The present task is a more predictive and longitudinal one and involves looking into the future and ascertaining a level of risk on the basis the Applicant lives out the rest of his life in this country.
Fifth, it was contended that but for the cancellation (and re-cancellation) of this visa, the Applicant would have been released on parole on 25 September 2015 following completion of his custodial time for his index offending. Reliance is placed on a letter from Mr Francis Lippett which appears in the material. Mr Lippett was asked whether the Parole Board would have been likely to approve the Applicant’s parole into the Queensland community but for the cancellation of this visa. Mr Lippett said “There is absolutely no doubt in my mind that [the Applicant] would have been released to reside at Ozcare at South Brisbane.”[19]Mr Lippett’s opinion should be tempered by several things: (1) following its meeting on 9 October 2015, the Parole Board determined on 15 October, 2015 that after noting the Applicant’s visa had been re-cancelled, it rescinded its decision of 31 October 2015 in which parole had been granted;[20] (2) the Applicant was first released on parole but subject to monitoring and supervision; and (3) he was then again released into the custody of Border Force and subject to him residing in immigration detention.
[19] A3, p2.
[20] G1, p97.
Sixth, in response to the Respondent’s contention that the Applicant had not engaged in sufficient rehabilitation to mitigate his risk of violent and unacceptable offending, it was contended that (1) this Tribunal should accept that the Applicant has gone through the correctional services system and that he has very much learnt from that process; and (2) his failure to undertake therapeutic courses specifically focused rehabilitation for violent offending can now be explained on the basis of there being a limit to the courses a non-citizen can undertake in either prison or immigration detention. The first contention can be safely rejected as being the evidence of the Applicant alone with no corroboration from any expert. The second can be rejected on the basis of the Applicant being, by virtue of NZYQ, in the community since late October, 2024. There was sufficient time for him to source and obtain expert evidence from a clinician about the extent of his claimed rehabilitation from any future predisposition towards violent offending.
Seventh, it was contended that the risk of further jail time and a likelihood of a recommenced existential threat to his visa status to remain in Australia will act as preventive elements against his future recidivist risk. Both aspects of this contention can be safely rejected. The Applicant took no deterrent effect from the non-custodial terms imposed on him for his non-index offending. One cannot be convinced he has learnt any deterrent lesson from the sentence imposed on him for his index offending. The only ‘risk’ to his visa status from an adverse outcome in a future mandatory cancellation proceeding is that he will remain in Australia on a Bridging Visa and not be removed either to Vietnam or another country. He will not go to Vietnam because of his favourable protection finding. It is unlikely he will go to another country due to that country’s understandable reluctance to accept a person with the Applicant’s offending history.
Eighth, a contention was put to the effect that the Applicant has been in Australia since the age of 12 and has, over that time, developed close ties with his family members in this country. It was said that those family members now represent a protective bulwark towards his further recidivist risk. This now-asserted protective element did nothing to prevent commission of both his index and non-index offences. There is little to suggest the family element will be any more protective of his future recidivist risk. It is, to mind, not insignificant that the Applicant committed his index offending with members of his own family.
Finally, a somewhat curious contention was put to the effect that Australia’s participation in the Vietnam war resulted in a number of Vietnamese refugees coming to this country. Because of that, it was contended that Australia should now accept the good with the bad in terms of people like the Applicant who came here and very seriously offended. It was contended that after spending virtually two decades away from the Australian community in either prison or immigration detention, the Applicant should now be allowed to permanently reside here in peace. This, it was contended, should be enough to convince this Tribunal to give the Applicant the visa he seeks. It will not be enough. The proposition that Australia is somehow to “blame” for doing the right humanitarian thing and accepting refugees like the Applicant from a war-torn country should be rejected out of hand. Likewise, a contention that in accepting those refugees, Australia should accept the good with the bad is, with respect a vacuous proposition that should also be rejected out of hand.
Findings about recidivist risk
The Applicant’s role in index offending: I will not go behind or around the circumstances of the Applicant’s index offending. He was a knowing and willing participant in a transaction of extreme violence that saw one participant rendered a paraplegic and two other victims shot. All of this occurred in a typical suburban street in Brisbane and it is very fortuitous that a member of the public was not harmed and/or that none of the participants suffered a fatality. Any suggestion that the Applicant was not one of the fundamental cogs in the machinery of this extreme violence should be rejected. He was not a bit-part player and any suggestion that his current recidivist risk should be moderated on that basis must be rejected.
No independent clinical opinion: the Applicant’s index offending was very serious. There is nothing from an independent and suitably expert clinician providing any opinion about the state of his rehabilitation from violent offending. True it may be that he has completed a number of vocational courses in areas as diverse as “non-violent conflict transformation” and “anger management”. We do not know what, if any, psychopathological factors motivated the Applicant’s involvement in the index offending. We do not know whether any such factors are presently the subject of remedial management and control. It is not enough for the Applicant to now say he has been in the community since late October last year and has not re-offended. This is not enough to prove those bona fides. It is not enough for him to say that after two decades of removal from the community he has, as it were, had enough of his offending ways and wants to experience a quiet and peaceful life. This is his evidence and his alone. There is also no suggestion of him intending to engage with rehabilitation if returned to the community.
The value of other assessments: I have explained how another decision-maker’s findings pursuant to s.36(1C) of the Act do not reliably inform this Tribunal about the Applicant’s current level of recidivist risk. I have also explained how the views of Mr Lippett should now be received with caution in circumstances where the Applicant was released on parole subject to monitoring and supervision and then subject to him residing in immigration detention. None of these other assessments inform this Tribunal’s assessment of the Applicant’s current recidivist risk.
Other contentions: I have explained how the Applicant’s family is not likely to act as any protective element to his future recidivist risk. They were around him in the past and did little or nothing to prevent both his index and non-index offending. He learnt nothing of a deterrent nature from his sentences for his non-index offending and proceeded to commit the very serious index offences. He would surely have known about the risk to his visa status at the time he committed the index offences. But this threat did not deter him. If he re-offends such as to cause cancellation of a future visa, he knows (1) he will not be removed to Vietnam; and (2) he will get a visa enabling him to stay here on a virtually indefinite basis. The suggestion that Australia should somehow bear responsibility for accepting both good and bad refugees from a war-torn country should be rejected out of hand.
The evidence does not create a favourable impression of (1) the state of the Applicant’s rehabilitation from violent offending; (2) his level of insight into the very serious nature of his index offending and (3) of there being any reliably protective factors against his future recidivist risk. These are factors that do not bode well for his future recidivist risk if now returned to the community. I thus arrive at a finding that this Applicant represents a real, ongoing and not insignificant risk of reoffending if returned to the community. I reach this recidivist risk finding with the Direction’s dictum that the safety of the Australian community is ”..the highest priority of the Australian Government[21]at the forefront of my mind.
[21] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.
Is the risk of harm affected by any of the factors referred to in 8.1.2(2)(c)?
Paragraph 8.1.2(2)(c) provides:
‘where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.’
To my mind, paragraph 8.1.2(2)(c) poses three separate questions:
(i)whether the risk of harm may be affected by the duration and purpose of the Applicant’s intended stay;
(ii)whether the risk of harm may be affected by the type of Visa the Applicant is applying for; and
(iii)whether there are strong or compassionate reasons for granting a short-stay visa.
In relation to Questions (a) and (b), I am not of the view that the risk of harm potentially represented by this Applicant is affected by the duration and purpose of the Applicant’s stay in Australia. If granted the Visa he seeks, the Applicant will be entitled to remain in Australia on a more or less permanent basis. I have assessed his recidivist risk. To my mind, it can be safely found that the risk of harm he poses if granted the visa he seeks is unaffected by the that visa’s duration, purpose and type.
In relation to Question (c), this question is not directly relevant to the instant facts. The Applicant seeks the subject Visa not for a singularly strong or compassionate reason such as, for example, attending a family wedding. He seeks the Visa to re-establish his life on a more or less permanent basis in this country. Further, the Applicant is not seeking the grant of a short stay visa. The Visa he seeks, if granted, would entitle him to remain in Australia on a more or less permanent basis.
Conclusion for Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the Applicant’s conduct to date has been of a ‘very serious’ nature:
(b)were the Applicant to re-commit his past offending, I am satisfied (and I find) that the nature of the harm resulting from recommission of the Applicant’s index and non-index offending would range from (1) an inordinate level of consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) materially measurable harm; (3) psychological harm; (4) actual physical harm from which a victim recovers; (5) actual physically catastrophic harm from which a victim never recovers; and (6) quite conceivably, fatal harm. I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s re-commission of his index offending is so serious that any risk of its re-commission would be unacceptable to the Australian community;
(c)I thus arrive at a finding that this Applicant represents a real, ongoing and not insignificant risk of reoffending if returned to the community whose safety is regarded by the Direction as ”..the highest priority of the Australian Government.[22]
[22] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal exercising its power conferred by s501(1) of the Act to refuse to grant the subject visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The parties agree that this Primary Consideration 2 is not relevant to the instant determination. My understating of the evidence has led me to the same conclusion and I will therefore allocate neutral weight to it.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community during that time.
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
An initial observation
The scheme of this part of the Direction is predicated on (1) the non-citizen having ties to Australia in the form of immediate and extended family as well as social ties; and (2) how those ties would be impacted by the non-citizen’s removal to their country of origin and permanent exclusion from Australia. The unique circumstances of this case are that the Applicant will not be removed to Vietnam due to his favourable protection finding. Nor is it likely that the circumstances of s.197C(3)(c) of the Act will materialise such that (1) the decision in which the protection finding has been made is quashed or set aside; (2) the Respondent Minister makes a decision that the non-citizen is no longer a person in respect of whom a protection finding would be made; and (3) the non-citizen asks the Respondent Minister, in writing, to be removed to another country other than Vietnam. I do not interpret this part of the Direction to compel consideration of how these ties would be impacted as a result of such contingencies materialising.
In these circumstances, I am thus hard-pressed to understand how, if at all, the Applicant’s ties to Australia would be impacted in the event of an adverse outcome in the instant matter. Those people will still be his “ties” regardless of whether he holds a protection visa or a bridging visa to remain here. The critical point is that regardless of the instant outcome, it is very likely he will remain here.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
Despite my preceding initial observation I am of the view that the Applicant’s ties with his two sisters, one brother and their children are strong and that each of them would be significantly impacted by his permanent removal from Australia, assuming this ever occurred. The material contains a number of letters of support from these immediate family members and each read favourably for the Applicant in the sense that the people representing those those ties would be adversely impacted in the event of his removal from Australia. At best, and in the unique circumstances of this case, I can only find that these ties militate in favour of the allocation of a moderate level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of these people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(b): Strength, nature and duration of ties with family or social links
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members: or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. Again, the material contains a number of letters of support from people falling under the category of other family members. Each of those letters speaks favourably of the Applicant and it is not an unreasonable inference to suggest those people would be adversely impacted by his removal from Australia, assuming this ever occurred.
I will find that the Applicant’s ties with these other family members are strong and that these people would be adversely impacted in the event of the Applicant’s permanent removal from this country. At best, and in the unique circumstances of this case, this paragraph 8.3(2)(b) supports the allocation of a moderate level of weight to the strength, nature and duration of the Applicant’s ties to these people in Australia. This finding is predicated on the limiting proviso of these other family members being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(a): Additional factors to take into account
This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia taking into account the following factors:
(i) whether the Applicant arrived here as a young child? [23] The Applicant arrived in Australia when he was 12 years old. He has lived here for a period of about 40 years. I will find that the Applicant did arrive here as a young child and that this this component of paragraph 8.3(2) does augment the weight allocable to his ties to this country;
(ii) whether the Applicant began offending soon after arriving here? [24] The Applicant arrived here as a 12 year old and recorded his first criminal conviction[25] in Australia in June 1991 some six years after his arrival. He thus did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;
(iii) the time the Applicant has spent contributing positively to the Australian community during his time here.[26] The Applicant has a history of employment in this country. He has held labouring jobs, he has worked in a grocery store and as a welder. The material points to him working intermittently during his period of incarceration. It can safely presumed he paid taxation on his earnings as an employee and would thus have would made his own contribution to the Australian community on this basis. The material seems silent about any community contributions. On the basis of his employment contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a moderate level of weight towards a finding about the strength of his ties to Australia.
[23] Paragraph 8.3(2)(a) of the Direction.
[24] Paragraph 8.3(2)(a)(i) of the Direction.
[25] Note to reader: this is the first of the nine offences (comprising index and non-index offending) I have taken account for the purposes of these Reasons.
[26] Paragraph 8.3(2)(a)(ii) of the Direction.
ANNEXURE B
ADMINISTRATIVE REVIEW TRIBUNAL ) ) No: 2024/8672 ) Re: VQKL
Applicant
And: Minister for Immigration and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Senior Member T Tavoularis DATE: 20 January 2025 PLACE: Brisbane DECISION: Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent dated 28 October 2024 to refuse to grant the Applicant a Permanent Protection (Class XA) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision
…………..……[SGD]……..…………… Senior Member T Tavoularis
0
3
0