WWXF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2868

WWXF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2868 (6 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5341
Re:WWXF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Kira Raif
Date:06 September 2022
Place:Sydney

The decision under review is affirmed.
.................................[sgd].......................................
Senior Member Kira Raif
Catchwords
MIGRATION – refusal to grant a Temporary (Partner) Class UK visa – where visa was refused under s 501(1) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – expectations of the Australian community – other considerations – international non-refoulement obligations - extent of impediments if removed – links to the Australian community – the strength, nature and duration of ties to Australia – refusal of visa is affirmed - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Kira Raif
BACKGROUND

This is an application for review of the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) to refuse to grant a Temporary (Partner) Class UK visa to the applicant.
The applicant is a national of the Republic of Macedonia, born in May 1976. He first entered Australia in August 2008 holding a Prospective Marriage visa. He made an application for a Partner visa in June 2009 on the basis of his relationship with his previous partner. That application was subsequently withdrawn after their relationship broke down.
The application that is the subject of this review was made on 6 December 2013 on the basis of the applicant’s relationship with his de facto partner Ms Z, an Australian citizen. The application was initially refused by the delegate in June 2016 because the delegate was not satisfied that the applicant was the spouse of the sponsor and that he met Public Interest Criterion (PIC) 3001 and the applicant sought review of that decision by the AAT. As the applicant did not attend the Tribunal hearing (he was incarcerated at the time), the Tribunal dismissed the application on 26 May 2017. The matter was remitted to the Tribunal for reconsideration by the Court and in January 2020 the Tribunal (differently constituted) found that the applicant did meet certain requirements for the grant of the visa and remitted the matter to the delegate.
In January 2021 the applicant was issued with the Notice of Intention to Consider Refusal of the application (NOICR) under s 501 of the Act. The applicant provided his response to the NOICR and provided additional comments to the delegate. On 21 June 2022 the delegate made the decision not to grant the visa to the applicant. The delegate found that the applicant did not meet the character test and exercised the discretion not to grant the visa. It is that decision that is the subject of the present review.
The issues before the Tribunal are:
(a)does the applicant pass the character test as required by s 501 of the Act and,
(b)if he does not, whether the Tribunal should exercise its discretion to refuse to grant the applicant the visa.
RELEVANT LAW
Pursuant to s 501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if satisfied that the applicant does not pass the character test.
The character test is set out at s 501(6) of the Act, and relevantly prescribes at s 501(6)(a) that a person will not pass the character test if a person has a substantial criminal record. That term is defined in subsection (7) of s 501. Relevantly to this case, s 501(7)(c) defines a substantial criminal record if a person has been sentenced to a term of imprisonment of 12 months or more.
Should the applicant not satisfy the character test, the discretion to refuse the visa under s 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Direction No 90 – Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (Direction 90). Direction 90 is binding on decision-makers, including this Tribunal, performing functions or exercising powers under s 501 of the Act.
Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at cl 5.2(2) of Direction 90 states that:
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.
The primary considerations which are set out in cl 8 of Part 2 of Direction 90 are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
The other considerations which are set out of cl 9 in Direction 90 are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community including:
(i)Strength, nature and duration of ties to Australia;
(ii)Impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: cl 7(2) and (3) of Direction 90.
DOES THE APPLICANT PASS THE CHARACTER TEST?
There is before the Tribunal the applicant’s Australian Criminal Intelligence Commission Check Results Report, which sets out the applicant’s criminal history as follows:

14.     03/08/18

15.     Supply prohibited drug > indictable quantity

16.     Imprisonment 3 years and 4 months, non-parole period 2 years

17.     03/08/18

18.     Supply prohibited drug >= commercial quantity

19.     Imprisonment 5 years and 3 months, non-parole period 3 years and 5 months (Form 1 matters taken into account)

20.     03/08/18

21.     Deal with property proceeds of crime < $100,000

22.     Taken into account on Form 1

23.     21/03/11

24.     Stalk / intimidate intend fear of physical / mental harm

25.     s.9 bond – 12 months

26.     21/03/11

27.     Possess prohibited drug

28.     s. 9 bond – 12 months

29.     21/03/11

30.     Supply a prohibited drug

31.     100 hours community service order

32.     01/10/09

33.     Stalk / intimidate intend fear of physical /mental harm

34.     s. 9 bond 12 months

The applicant has thus been convicted of offences which resulted in a sentence of imprisonment of 12 months or more.
The applicant concedes that he does not pass the character test. Having regard to the above evidence, the Tribunal finds that the applicant has been convicted of offences and, in relation to the most recent offences, he was sentenced to terms of imprisonment of 12 months or more. The Tribunal finds that this constitutes a ‘substantial criminal record’ as defined in s 501(7)(c).
The Tribunal finds that the applicant has a substantial criminal record and that he does not pass the character test.
EXERCISE OF DISCRETION
The applicant submits, essentially, that he is remorseful for his conduct and is completely reformed, that he no longer takes drugs. The applicant states that his long-term relationship with the Australian partner, who is vulnerable, his links to the Australian community and the effect of impediment if removed, outweigh other considerations so that the Tribunal should exercise the discretion in his favour.
The respondent submits that the protection and expectation of the community, and the committal of the family violence offences, are considerations that outweigh other considerations that weigh in favour and for these reasons the decision under review should be affirmed.
The Tribunal’s considerations with regard to Direction 90 are set out below.
Primary considerations
Protection of the Australian community
Sub-clause 8.1 of Direction 90 provides as follows:
Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….
(2) Decision-makers should also give consideration to:
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.
The applicant has been convicted multiple offences set out above and the applicant concedes that his past offending was serious. The Tribunal has considered the nature and seriousness of the applicant’s conduct.
The Tribunal has had regard to the police reports relating to the 2018 offences, as well as the sentencing remarks of Judge Zahra. These indicate that in 2016 State Crime Command Drug Squad commenced an investigation to the supply of prohibited drugs (cocaine) by the applicant. Interception of his phone indicated that he used the mobile phone to facilitate the supply of the drugs and it was determined that he had an ‘extensive’ drug customer base and was supplying drugs on a regular basis. The records indicate that on multiple occasions undercover police officers purchased drugs from the applicant and during the search of the applicant’s premises, a substantial amount of drugs was found and seized. The applicant pleaded guilty to two counts of supply of prohibited drugs. In his oral evidence to the Tribunal the applicant agreed with that description of events.
In his sentencing remarks Judge Zahra noted, with respect to these offences, that the applicant was capable of sourcing large quantities of cocaine and required little notice to fulfil the significant quantities sought by the undercover operative and the applicant was observed to take the quantity of drug from a bulk quantity of cocaine kept at his residence. The Judge noted that the pattern of supply indicated that the applicant engaged in organised activity and had supplied significant quantities on three separate occasions. He has admitted to supplying drugs frequently, at times daily, and he was found to have been in possession of a substantial quantity of cocaine at the time of arrest. Judge Zahra described the applicant as a ‘mid-level supplier’. Judge Zahra refers to the applicant’s claim that he began using cocaine, could not finance his habit and offered to sell drugs to subsidise his own cocaine use. Judge Zahra found that the offences were committed for financial gain (the applicant told the Tribunal that he did not receive any money but only received some drugs from the sales but he also admitted that money was involved) and the Judge found that the applicant had a ‘propensity to supply substantial quantities of cocaine’. Judge Zahra also stated that the applicant had an expectation that the drugs he sold to the undercover police officer would be disseminated into the community.
Given the potentially significant harm that drugs cause to the users and the community in general, the Tribunal considers these offences to be extremely serious. The applicant’s evidence to the Tribunal is that as a former law enforcement officer, he appreciated the harm that could be caused by drugs. The Tribunal also places some weight on the repeated nature of the drug offending, as the first convictions for the supply and possession of prohibited drugs occurred in 2011 and the most recent offending for the supply of prohibited drugs occurred in 2018 (and the applicant seems to admit to using and selling drugs on other occasions).
In his oral evidence the applicant states that the 2011 offences were a ‘wake up call’ for him and he stopped using drugs for many years, but he started using drugs again when his relationship with Ms Z broke down around 2015. Judge Zahra notes in his sentencing remarks that the applicant had admitted to almost daily drug use and frequent sale of drugs to others and the applicant himself refers to the pre-release report in which he is recorded to have admitted to the frequent use of illicit drugs. This is consistent with the applicant’s oral evidence to the Tribunal as he told the Tribunal that when he could no longer afford to buy drugs for himself, he started selling to others to be able to pay for his own habit and he had about 10-12 people around him he could sell to. While the applicant had not been charged or convicted of any offences other than those set out above, it cannot be said, in the Tribunal’s view, that his offending was ‘isolated to points in time… with no trend of increasing seriousness or cumulative effect’.
With respect to the 2009 offence, the police report indicates that the applicant was married to Ms M but she formed the view that the applicant only wanted a visa and had cancelled her sponsorship of the applicant. It is stated that the applicant was angry and threatened Ms M continually. It is stated that in September 2009 Ms M packed the applicant’s belongings, which made him angry and he threatened to break all the computers and the play station used by the children. It is stated that the applicant had ripped out the internet cable from the wall when Ms M’s child was using it. It is reported that the applicant was yelling at Ms M and the children, pushed the furniture and threatened to distribute personal photos of Ms M at her workplace and in the local area. Ms M reported to have been scared that the applicant would hurt her and the children. It is noted that an urgent AVO was issued.
The applicant had denied this version of events and in oral evidence he stated that he and Ms M had a verbal argument only about his use of the internet but there was no violence or threats and the kids were not involved. The applicant denied moving the furniture or ripping out the internet cable, although he states that he did switch off the internet. The applicant states that when he attended the court, his language was not good and he wanted to return home, so he simply pleaded guilty. In his evidence to the Tribunal the applicant states that there is no agreed statement of facts and the ‘allegations’ were untested but he also acknowledges that he had entered a plea of guilty. He told the Tribunal that he would never harm women and children and he is a ‘protector of children’. The Tribunal is mindful that the applicant was convicted of the offences “Stalk / intimidate intend fear of physical /mental harm”. In the Tribunal’s view, the finding of guilt and a conviction can be taken as evidence that the offence was committed. The Tribunal considers this offence, which was in relation to the applicant’s partner and is said to have involved abusive or threatening behaviour towards a family member, constitutes family violence. The Direction provides that it is a serious offence.
With respect to the 2011 conviction, the NSW Police Facts Sheet indicates that the applicant was observed to drive in an erratic manner and when the police searched his motor vehicle, the applicant attempted to run away from the police. When he was apprehended, police observed a plastic bag containing ‘white powder’ next to him, there was an amount of cash found on the applicant’s person and in the surrounding area, three bags containing white powder were discovered. The applicant admitted the bags were his and said they contained cocaine and ice. The applicant was found guilty, given a good behaviour bond and ordered to do community service. The applicant largely agreed with that description of events in his oral evidence to the Tribunal, although he stated that he was sitting with a friend in a stationary car when the police approached, searched the car and found the drugs.
The Direction provides that the Tribunal is also able to have regard to the applicant’s candour when dealing with the Department. There is before the Tribunal a copy of the applicant’s application for the Partner visa, completed in November 2013. In that form, the applicant referred to his 2009 criminal conviction for possession of cocaine. He failed to mention his conviction for the supply of drugs. (He states in oral evidence that he had made a mistake.) The Tribunal is mindful that by the time the form was completed, the applicant had also been convicted of stalking / intimidation. It does not appear that the applicant mentioned these convictions when completing the application form. In oral evidence, the applicant told the Tribunal that he did disclose all convictions when he spoke to his then migration agent and had no intention to mislead. The representative submits there was a mere error and no ‘purposeful falsity’. The Tribunal is mindful, however, that the applicant did sign the application form and would have had the opportunity to check its contents. The Tribunal does not accept that any error on the form can, or should, be fully attributable to the conduct of the migration agent. The Tribunal finds that the applicant has not been truthful in his dealings with the Department at that time by failing to disclose all his convictions.
The Tribunal has formed the view that the applicant’s conduct to date has been very serious.
The Tribunal has considered the risk to the community, should the applicant reoffend. As noted above, the Tribunal considers drug-related offences to be very serious and, should the applicant again engage in criminal conduct or conduct of similar nature, the nature of harm to individuals and the community would be significant. Similarly, the family violence offences are serious and could cause serious emotional and / or physical damage to the victims.
The Tribunal has considered the likelihood of the applicant engaging in further criminal or anti-social conduct.
The applicant denies that he had committed family violence in his relationship with Ms M (he submits he was the victim of family violence). He claims the family violence offences occurred about 13 years ago and there has been no repeat offending in that significant period of time. The Tribunal accepts that this is so. With respect to the drug offending, the applicant states that he is a strong person and has been able to stop the use of drugs completely after the 2011 convictions. He submits that he is fully rehabilitated and has not used drugs in detention despite their availability. He notes that he was able to work outside of jail and unsupervised during his detention and spent considerable time in a low security jail with minimal supervision. The Tribunal accepts that, at least towards the end of his incarceration, the applicant enjoyed some degree of freedom and minimal supervision. There is no evidence of his offending or breaching any rules while in jail. There is no evidence of any offending or drug use while the applicant was in immigration detention.
The applicant submits that the 2011 drug offences were ‘minor’ and he was sentenced to a 12 months s 9 bond in relation to one offence and 100 hours of community service in relation to the other offence. The Tribunal acknowledges that the sentences may suggest that the offending was at a lower scale, but the Tribunal does not consider any drug-related offending can be classified as ‘minor’, given the potentially significant harm that drug use can cause to the individuals and the community as a whole. In this case, it is not in dispute that the applicant was convicted of possession but also of supply and his evidence is that he bought some drugs (ice) for the person he was found with and that cannot be classified as a minor offence in the Tribunal’s view.

The applicant refers to the decision to grant him the Bridging E visa, where the Tribunal, differently constituted, found that he would abide by visa conditions, including a condition not to engage in criminal conduct. The applicant refers to the normative effect of that decision and the desirability of consistent outcomes. The Tribunal considers this to be unhelpful. Firstly, Tribunal decisions have no precedential value. Secondly, the previous Tribunal considered a very different issue of whether the applicant would comply with visa conditions (in particular, a condition not to engage in criminal conduct) over a limited period of a Bridging visa validity. This is not the case here where the applicant is seeking to be granted a permanent visa and the risk of reoffending needs to be considered without any time limitations that may be relevant to a Bridging E visa. Thirdly, the previous Tribunal was not bound by, nor considered, the factors set out in Direction 90. Fourthly, reasonable minds may differ as to the assessment of the applicant’s future conduct and it is possible that a different Tribunal member would have reached a different conclusion.
The applicant claims he is remorseful. In his declaration dated 31 July 2022 the applicant claims he accepts full responsibility for his offending and stated that he is genuinely remorseful and has taken positive steps so that he is fully reformed. He repeatedly told the Tribunal in oral evidence that he fully appreciates the significance of his conduct and the consequences of his actions and that he is remorseful for what he has done. The Tribunal acknowledges that evidence.
The Tribunal has had regard to the sentencing remarks of Judge Zahra who refers to a psychological report by Dr Martin. It is stated in that report that the applicant did not seek to exonerate himself for his offending and took responsibility for his conduct. He is stated to have expressed remorse and Dr Martin suggested that the applicant had developing insight to the impact of cocaine usage and the charges were having on him. The Judge noted that the applicant had expressed regret that his conduct would have on Ms Z but he did not articulate any insight into the harm that drug supply causes to others in the community. Judge Zahra refers to the Community Corrections report which has assessed the risk of reoffending as ‘medium – low’.
The Tribunal has considered the report prepared by Mr Hamid Reza Dadgostar, registered psychologist. It indicates that one of the reasons for referral was to determine whether the applicant is of bad character. With respect, that is a matter for this Tribunal by reference to the statutory criteria and not a finding to be made by a psychologist. It is also notable that under the heading ‘Mr D’s history and background’ Mr Dadgostar refers to the most recent 2018 convictions but there is no mention of the earlier offending. He told the Tribunal he had read the Criminal Intelligence Report and would have been aware of the prior convictions but also that he was assessing the applicant on the basis of his present circumstances and past offending and it did not appear from his answers that Mr Dadgostar was fully aware of all the past offending. It is also not apparent, from Mr Dadgostar’s evidence to the Tribunal, that he took into account the worksheets prepared during the applicant’s incarceration in 2020. If relevant information was not considered by Mr Dadgostar in formulating his views, the accuracy and probative value of such views is, in the Tribunal’s view, somewhat limited. Mr Dadgostar also refers to the Personally Assessment Inventory and Post Traumatic Stress Disorder, which appear to have formed the basis of the findings, and the Tribunal is mindful that these are self-reported questionnaires. Given the circumstances of the applicant’s engagement with Mr Dadgostar (for the purpose of the visa process), the Tribunal is of the view that the self-reported claims can be self-serving and potentially unreliable. The Tribunal has the same concerns with respect of the assessment of the applicant’s partner, which seems to be based on the self-report questionnaire. Nevertheless, the Tribunal acknowledges Mr Dadgostar’s opinion that the applicant will not reoffend and presents no danger to the community. The Tribunal also acknowledges and accepts Mr Dadgostar’s conclusions about the effects of the visa refusal on Ms Z and the applicant himself.
In oral evidence Mr Dadgostar made a distinction between being a risk to the community and a danger to the community. Mr Dadgostar stated that the applicant is not a danger to the community but Mr Dadgostar could not (or was unwilling to) state whether the applicant was a risk to the community. Whether or not the applicant is a danger to the community does not necessarily address the issue of the likelihood of reoffending.
The applicant’s evidence is that his offending occurred to subsidise his own drug habit. When asked if he had conducted any assessment of the applicant’s likely use of drugs in the future, Mr Dadgostar expressed the view that he would not, on the basis that he has not used drugs for some years, has the support of his partner and the community and has served jailtime. However, the Tribunal is mindful that the applicant’s situation prior to the 2016 offending was not dissimilar, in that the applicant had the support of others, he claims he had not been using drugs for some years and has had dealings with the criminal justice system in 2011 which he himself claims was a ‘wake up call’ for him. Yet, he returned to drug use in 2016. It is not apparent that Mr Dadgostar was aware of these circumstances because his report does not refer to the earlier offending and the applicant’s undertaking in 2011 not to reoffend. While Mr Dadgosar claims his assessment of future risk does not change, the Tribunal is of the view that the applicant’s past conduct is relevant to that assessment.
The applicant also states that when he was placed in immigration detention, he was assessed as being likely to engage in violence and non-compliant behaviour and procure drugs and he has not engaged in any such conduct and has been ‘a model detainee’. The Tribunal accepts that this is so and is also prepared to accept the applicant’s claim that drugs are readily available in the immigration detention centre. But the Tribunal is also of the view that the opportunities for possession and supply of drugs in detention are not as readily available as they may be in the community. There are also fewer temptation in detention and not many opportunities for a lavish lifestyle, which seems to have formed some motivation for the applicant’s past conduct. Such temptations would be more prominent if the applicant lives in the community. In the Tribunal’s view, a period of applicant’s claimed abstinence while in detention goes some way to establishing that he will not return to drug use but it does not satisfy the Tribunal that there is no possibility that the applicant will not return to drug use and will not reoffend when faced with the stressors of life (as he claims happened in 2015 after some years of abstinence from drug use). That is, the applicant’s conduct in detention suggests a lower risk of reoffending but does not indicate the absence of risk.
The applicant claims that he has completely reformed, has had exemplary conduct in jail and detention and has been checked many times while in jail with no evidence of drug use. The applicant states that this is not the case where he was previously incarcerated and reoffended. However, it is the case (and this is significant in the Tribunal’s view) where the applicant had previously offended, claims to have stopped using drugs and then reoffended again. He has convictions for drug related offences occurring in 2011 and again in 2018 and it cannot be said that after his first interactions with the criminal justice system (which, he claims, were a ‘wake up call’ for him), the applicant was entirely ignorant of the possible consequences of his conduct. The fact that he returned to drug use in 2015 and reoffended on a far more significant scale does suggest to the Tribunal that there remains a real possibility that the applicant may relapse in the future, particularly if subject to stressors, even if he has stopped using drugs at present.
The Tribunal is also mindful that not all offending relates to, or stems from, the use of drugs. The first family violence offence did not appear to involve the use of drugs or alcohol. While the applicant denies there was any family violence, as noted above, the Tribunal is of the view that the fact of the conviction constitutes evidence that the offence was committed. Thus, even if it is accepted that the applicant has abstained from drugs and has no intention of using drugs again at present, in the Tribunal’s view that does not diminish the possibility of other offending that does not relate to the use of drugs.
The Tribunal is also mindful that, according to information before Judge Zahra, the applicant had engaged in counselling in 2007 (he told the Tribunal it was during his army service) and in 2016 (he told the Tribunal his partner told him he needed help for drug and alcohol addiction and sexual addiction and he sought professional help but got arrested soon after). This appears to suggest that the applicant and those around him recognised that he had a problem and needed help. However, the applicant continued to use drugs which resulted in his arrest and incarceration. In these circumstances, the Tribunal places less weight on the applicant’s claim that his awareness of the consequence of his conduct, and professional help he had received, means he will not reoffend again.
The applicant told the Tribunal that all his problems in life stem from drug use and his conduct and he does not want to ‘go back’ to the same situation. He states he is embarrassed in front of the others and the community and it is not who he is. The Tribunal acknowledges these statements, although the Tribunal is also mindful that the applicant had been a user of drugs for many years (according to the sentencing remarks and his own evidence), in the Tribunal’s view he was not ignorant, nor lacking insight into his activities in the past. The Tribunal is of the view that more time needs to pass before the applicant’s undertakings can be taken as being genuine.
Overall, the Tribunal has formed the view that the risk of reoffending is, at present, low. However, the Tribunal considers that some degree of risk remains and is not non-existent. This is because the applicant has not remained in the community for any meaningful period since his claimed abstinence from drugs and undertaking not to return to drug use. The applicant refers to a three month period when he could work in the community and report to jail at night, and also a low supervision jail environment, but this would still constitute a very restrictive environment compared to what the applicant would experience in the community if completely unsupervised. The Tribunal is of the view that the opportunities for drug use or supply, monetary profit, temptations of a lavish lifestyle and any number of stressors would be more readily available in the community than they have been in detention. That is, the applicant’s resolve and ability not to be involved with drugs has not been fully tested in the community on this occasion (and, notably, on the previous occasion in 2011 when the applicant made an undertaking not to use drugs, he relapsed into drug use by 2016).
The Tribunal is mindful that the pre-release report dated 15 September 2020 – which would have taken into account the applicant’s conduct during incarceration – identifies the risk of reoffending as medium low. This is clearly higher than low risk and supports the view that the risk continues to exist and that risk is not insignificant.
The Tribunal has formed the view that the risk of reoffending continues to exist, even if that risk is relatively low (or medium – low according to the presentencing report). It is not an insignificant risk. The Tribunal finds that should the applicant reoffend, the consequences could be significant, given that the seriousness of the conduct. The Tribunal finds that these considerations weigh heavily in favour of exercising the discretion to refuse to grant the visa.
Best interests of minor children
The applicant states that he has no minor children in Australia but he plays a role in the lives of Ms Z’s nieces and nephews and is important in their development. He told the Tribunal of the close relationship he has with the children (he is a godfather to one) and the role he wants to play in their future. There are a number of statements before the Tribunal from family members concerning the applicant’s involvement with the children. Ms Z-S, the cousin of the applicant’s partner, states that the applicant was involved in the christening of one child and was sometimes involved with child minding and has not met the other child. In oral evidence, she spoke about the extent of the applicant’s (and his partner’s) involvement in the children’s upbringing and the plans for the future. Ms Z-S spoke about her own health condition, stating that the applicant’s involvement in her children’s lives would be of greater significance. The Tribunal accepts that evidence.
The Tribunal is mindful that during the applicant’s incarceration, the applicant would have had only limited interactions with these children. He told the Tribunal there was no possibility of personal contact while he was in jail and only Facetime contact since he has been in immigration detention. There is no probative evidence before the Tribunal to indicate that the change in the relationship between the applicant and these children, resulting from his incarceration and more limited interactions, has had any adverse impact on the children.
The Tribunal is prepared to accept that the applicant is a godfather to one of the children and that he has shown affection towards, and had some involvement with, the other children. There are other nieces and nephews and Ms Z’s statement to the Tribunal outlines the nature of the applicant’s interactions with the children. She told the Tribunal she loves these children and, as her partner, the applicant has always been part of family functions. The applicant also describes in his oral evidence his interactions with the children and the Tribunal is prepared to accept this evidence. However, that is not sufficient to establish that the children’s best interests would be affected by the applicant’s circumstances and visa issues. The applicant does not perform any parental role in relation to the children and this is relevant according to paragraph 8.3(4) of the Direction. The Tribunal is also of the view that the applicant will be able to maintain reasonable electronic contact with the children irrespective of his place of residence, as he has done during the lengthy period of his incarceration. The Tribunal acknowledges that the nature of the applicant’s relationship with the children is likely to be very different if the applicant is not in physical proximity with the children but in the circumstances where there are other family members performing parental responsibilities in relation to the children and the applicant is able to maintain some relationship with the children, the Tribunal is not satisfied that the best interests of the children would be adversely affected if the applicant is not granted the visa.
The Tribunal finds that a decision to refuse to grant the visa to the applicant would not adversely affect the best interests of the children. This consideration is neutral.
Whether the conduct engaged in constituted family violence
As noted above, some of the offending by the applicant constituted family violence, being conduct and threats in relation to his former partner and her children. While the applicant denies he had engaged in any conduct that may constitute family violence and disagrees with the statement of facts, the Tribunal is of the view that the finding of guilt is evidence that the offence was committed and that offence, in relation to his former spouse, constitutes family violence.
The Tribunal acknowledges the applicant’s evidence that the offences occurred many years ago and there has been no evidence of repeated offending, nor escalation of the conduct. The Tribunal also acknowledges the witness statement from Ms Z, who states that there has never been any violence in their relationship. These are exonerating factors.
The Tribunal finds that the applicant had committed an offence involving family violence and that weighs against the decision to grant the visa.
Expectations of the Australian community
Clause 8.4 of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
In his submission to the Tribunal the applicant states that low weight should be given to this consideration, given that he has been in Australia for approximately 14 years, has reformed and has proved that he can be trusted in the community.
As noted above, and for the reasons set out earlier, the Tribunal is not entirely satisfied that the applicant is fully reformed and can be trusted in the community. As for the length of the applicant’s stay in Australia, the Tribunal is of the view that the community expectations would consider this factor more significant if the applicant held a permanent or at least a long term visa to enable him to live in Australia. In this case, the applicant held mostly bridging visas and, for a period of time, he was an unlawful non-citizen. The Tribunal is of the view that lesser weight should be given to the length of the applicant’s stay in Australia in circumstances where he has not been granted a permanent or even a substantive temporary visa to remain in Australia.
In considering the expectations of the Australian community, the Tribunal places some weight on the nature of the offences. In the Tribunal’s view, the community would find drug-related offending and the family violence offence extremely serious. The Tribunal places some weight on the circumstances in which these occurred. The evidence suggests that the drug offending occurred to enable the applicant to pay for his own drug use. This was not an act of desperation but a calculated conduct in which the applicant placed his own interests above those of the community and others who may be affected by the use of drugs. It is also of some significance that the drug related offences were multiple. Having been ‘warned’ through the 2011 convictions, the applicant was fully cognisant of the serious repercussions of his conduct, yet he engaged in the same offending of drug possession and supply leading to the second series of convictions.
The Tribunal accepts that a considerable degree of hardship may be caused to the applicant if the applicant is not granted the visa, most notably because it may result in his separation from his long-term partner. The Tribunal also accepts that significant hardship may be caused to the applicant’s partner if the visa is not granted. The Australian community may view such matters as favouring the exercise of discretion in favour of granting the visa. However, the Tribunal is of the view that the Australian community would also give due regard to the nature of the offending and the applicant’s general disregard for the Australian community (noted elsewhere in these reasons). The Tribunal has formed the view that in the circumstances of this case, the community would expect that the applicant’s conduct would result in him losing the opportunity to remain in Australia.

The Tribunal has formed the view that, having regard to the totality of the applicant’s circumstances, the Australian community would not support the granting of the visa to the applicant. That is, the expectation of the community weighs heavily against the visa grant.
Other Considerations
International non-refoulement obligations
The applicant refers to his involvement in the special forces unit of the police in North Macedonia prior to his entry to Australia and also his role in the armed conflict during the civil war. The applicant states that his identity was protected but a French journalist was able to take a photo of himself and that photo ended up on the internet and since that time he had been threatened and there was a ‘bounty on his head’. The applicant submits that as a result of his military service and his participation in dealing with terrorists (and with a particular high profile individual) he fears he will suffer harm. The applicant states that those he previously took action against are now in power and everyone will know his background and what he did. The applicant refers to the US State Department report and other country information which refers to human rights abuses and states that there is a real chance of serious harm and/or a real risk of significant harm because of his past activities. The applicant states that all his former colleagues have left the area or have been killed and the former terrorists are now in government, so he could not get state protection.
In considering the non-refoulement obligations, the Tribunal is guided by the principles recently enunciated by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17. The court stated at [29]–[30]:
Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
The Tribunal acknowledges the applicant’s evidence and acknowledges that the evidence raises claims that Australia’s non-refoulement obligations arise in this case. However, the Tribunal has decided not to give weight to these in exercising its discretion in favour of the applicant because the Tribunal has formed the view that these matters would be more appropriately addressed through a different visa process. Should it be determined that the applicant is owed protection claims by Australia, the applicant would not be removed from Australia.
The Tribunal is satisfied that the applicant’s claims do not raise any claims that would not be assessed under the protection visa process.
In his evidence to the Tribunal the applicant refers to s 36(1C) of the Migration Act which requires an assessment of whether the applicant has committed a particularly serious crime and he claims drug offending would be considered to be a serious crime. The applicant argues that he may not be granted the protection visa because of his conviction and if he cannot meet the statutory criteria for the grant of that visa, that process would be nugatory. The applicant submits it is a relevant consideration in determining whether to defer the assessment of Australia’s non-refoulement claims in this case. The Tribunal does not consider it is correct to state that due to the applicant’s conviction, the protection visa process would be nugatory. This is because if there is a protection finding in relation to the applicant (which is separate to a finding that he is eligible to the grant of a protection visa), the applicant would not be removed from Australia, in accordance with s 197C of the Act.
The Tribunal has decided to defer the assessment whether the non-refoulement obligations arise in this case for such an assessment to be completed, should the applicant make an application for a protection visa in the future.
Extent of Impediments if removed
The applicant refers to the long-term relationship with his Australian partner and the significant hardship that his departure from Australia would cause to his partner, in particular in light of her vulnerabilities (poor health). There are several statements before the Tribunal concerning the relationship and the potential impact of separation, including statements from Ms Z and from her mother and statements from others. Ms Z and her mother also gave compelling oral evidence to the Tribunal, which the Tribunal accepts.
The Tribunal accepts that if the applicant is removed from Australia as a result of not being a holder of a visa and being an unlawful non-citizen, it may lead to a separation of the applicant and Ms Z, as well as her family. The Tribunal accepts that this may cause significant hardship to the applicant and his partner. The Tribunal also accepts that if Ms Z decides to travel overseas with the applicant, this could cause her significant hardship, including loss of employment, due to her caring responsibilities towards her mother and family links in Australia, lack of language, etc.
The applicant submits that he suffers from PTSD and needs the support of his partner to help him maintain his well-being, which could not be provided to him if he is overseas, as it is not realistic to expect his partner to move to North Macedonia. The applicant also submits that his partner relies on him for physical and mental well-being and he refers to his partner’s health issues. There are before the Tribunal a number of medical reports concerning Ms Z and the Tribunal has also had regard to the psychological reports relating to the applicant and Mr Z. There is a detailed statement from Ms Z about the impact the applicant’s visa issues and the possibility of his removal from Australia has had on her mental health. There are reports from Mr Dadgostar and Mr Di Prinzio concerning the effect of visa refusal on Ms Z and the Tribunal accepts the evidence in these reports.
In oral evidence Mr Di Prinzio also referred to the hardship that Ms Z may experience if she was to live overseas, including lack of language skills. The Tribunal accepts that evidence.
Generally, the Tribunal does not accept that support, including emotional support, can only be provided where parties reside in close physical proximity. In this case, the applicant has spent considerable time in criminal and then immigration detention and despite that, he has been able to maintain a meaningful relationship with Ms Z. The Tribunal acknowledges that if the applicant was to leave Australia and if Ms Z was to remain in Australia, there would be very few, if any, opportunities for personal contact and the nature of their contact and interactions would be very different than if the applicant was to remain in Australia. The Tribunal accepts that there would be more limited opportunities to provide, and receive, support. Alternatively, if Ms Z was to leave Australia with the applicant, there would also be significant hardship to her, for the reasons Ms Z and others outlined in their evidence.
Ms Z told the Tribunal about her present health issues, stating that she requires surgery and nobody is available to care for her. She referred to the hardship if she was to leave Australia, including lack of language and employment. The Tribunal acknowledges that in the circumstances of this case, there could be more severe hardship caused to the applicant’s partner if the applicant is removed from Australia because of her particular circumstances (in particular, general health and mental health issues). The Tribunal has had the benefit of evidence of two psychologists who had observed Ms Z and accepts their professional opinion. Ms Z also suggests in her statement that her mother had suffered a heart attack as a result of the applicant’s visa issues but there is little evidence to support any claim that there is any link between the two. The Tribunal has had regard to the various statements, including the evidence from Ms Z, her family members and others in the community. Ms Z also states that she would not be able to support herself financially in Macedonia and would not have access appropriate treatment in Macedonia and while there is little independent probative evidence to support that claim, the Tribunal accepts that significant hardship would be caused to her and others if the applicant is to be removed from Australia.
The Tribunal does not consider the applicant’s age, linguistic, cultural or other characteristics would preclude his resettlement in his home country. The applicant’s evidence to the Tribunal is that he cannot stay in Macedonia, so if he is to leave Australia, he may live with his brother in Italy or he has a job opportunity in Dubai. The Tribunal accepts that if the applicant does not hold a visa and has to leave Australia as a result, it may result in his separation from his partner, friends and work colleagues in Australia and loss of employment opportunities. Alternatively, if Ms Z was to leave Australia to be with the applicant, it could cause hardship to her family and employer in Australia.
The Tribunal accepts that there may be strong impediment if the applicant is removed from Australia.
The Tribunal is also mindful that if the applicant’s application is refused on character grounds, the applicant may be unable to seek another visa in the future and, practically, that may mean separating from his partner and friends in Australia and severing his links to this country. The Tribunal accepts that future limits on visa options and on being able to return to Australia may also cause hardship.
The Tribunal finds that these considerations weigh heavily in favour of visa grant.
Impact on victims
There is no evidence before the Tribunal about impact on victims. This consideration is neutral.
Links to the Australian community including the strength, nature and duration of ties to Australia and Impact on Australian business interests
The applicant refers to his long-term relationship with Ms Z and the role he plays in relation to her nieces and nephews. This has been addressed above and the Tribunal generally accepts the evidence before it.
The applicant states that he has been living in Australia for a significant period of time, from August 2008 (for approximately 14 years). The Tribunal accepts that this is so, although the Tribunal is also mindful that the applicant has never had a permanent visa to remain in Australia. In the Tribunal’s view, there can be no expectation that the applicant would be permitted to remain in Australia if he has never been granted a permanent visa to live in Australia and his links to Australia and the nature and duration of ties must be viewed in light of the fact that he has only held temporary visas (primarily Bridging visas) or no visas at all.
Nevertheless, the Tribunal accepts that during the period of his residence in Australia, the applicant has formed significant family, social, financial and other ties to Australia. The Tribunal accepts, for the purpose of this review, that the applicant has a genuine relationship with Ms Z. There are numerous supporting statements before the Tribunal from the applicant’s friends and members of the community and the Tribunal accepts that the applicant has significant social ties in Australia. The applicant had been employed in the past (although various reports refer to him being unemployed at the time the most recent offences were committed) and there is an offer of future employment and the Tribunal accepts the applicant has employment and business ties in Australia.
The applicant also refers to the impact on the Australian business if he is not granted the visa. The applicant states that his partner’s ability to work has been adversely affected by his ongoing detention and the possibility of removal from Australia. The applicant refers to his partner’s important role in the berry industry and there are statements from third parties supporting the applicant’s claims, including a statement from the applicant’s employers and work colleagues. In her oral evidence to the Tribunal, Ms Z spoke about her involvement in the berry industry, the current projects she is involved in and her future aspirations, which are ‘on hold’ because she does not know what the future holds. The Tribunal is prepared to accept that if the applicant is not granted the visa, it many affect this partner’s mental health and, in turn, her ability to perform her role. Ms Z’s evidence is that she could not be replaced if she is to leave her employer and others may have no jobs as a consequence.
The Tribunal acknowledges written and oral evidence from Ms Z’s employer Mr M. He states that if Ms Z is not available to perform her role (and he claims her knowledge cannot be replicated), the business will suffer financially and in the past they had lost money and many employees when Ms Z was not available to fully contribute to the business. Mr M submits that if Ms Z was to leave the business, it would have significantly adversely impacted on the company and the industry and would have resulted in the reduction of staff. The Tribunal received oral evidence from Mr K, the CFO of Ms Z’s employer, who also spoke about Ms Z being affected by her partner’s visa issues and being unable to perform her role. Mr K spoke about the contribution Ms Z makes to the business and the adverse effect on the company’s financial situation, market share, future projects and ability to maintain staff levels if Ms Z was to leave the company. The Tribunal is prepared to accept that if Ms Z was to leave Australia (which may be, but need not be, the consequence of the applicant not being granted the visa), it may have an adverse effect on Australian businesses.
The Tribunal finds that these factors weigh significantly in favour of visa grant.
OTHER CONSIDERATIONS
The list of considerations set out in Direction 90 is not exhaustive and the Tribunal has had regard to other factors set out below.
There are multiple statements from friends and colleagues in support of the applicant (and there is some oral evidence before the Tribunal). Many of his friends and Ms Z’s relatives and work colleagues refer to the applicant being of good character and to the offending being out of character. The Tribunal accepts those who provided statements genuinely hold the views expressed in these statements although some of these statements (and the oral evidence) suggests that the writers may not have been aware of the applicant’s earlier offending. The applicant’s oral evidence to the Tribunal confirms that he had not informed his friends of the earlier offending and he would be embarrassed if they were aware of his past convictions. In these circumstances, the friends’ statements that the most recent offending was ‘out of character’ are less persuasive. The Tribunal gives these statements some, but not a significant, weight in favour of the applicant.
There is a substantial amount of evidence before the Tribunal concerning the circumstances of the applicant’s partner Ms Z, including in relation to her general and mental health, employment and the reports from two health professionals about the effect that refusing the visa to the applicant would have on her. The Tribunal general accepts that evidence and, as noted above, accepts that exercising discretion not to grant the visa could cause significant harm and hardship to Ms Z. The Tribunal gives this significant weight in favour of the applicant.
The applicant notes that the Tribunal had previously decided to waive the requirements of PIC 3001. The relevance of that decision is not entirely clear to the present Tribunal as considerations relevant to the waiver of PIC 3001 are very different than those that are before the present Tribunal. The Tribunal considers the earlier findings that PIC 3001 does not apply to the applicant to be of no relevance to the issues that arise on the present review.
The applicant’s evidence to the Tribunal indicates that he has not always been compliant with the immigration and other laws in Australia. Thus, he told the Tribunal that he worked at Paddy’s Market when he did not have permission to work, which would have been an offence under the Migration Act. Notably, the applicant was aware that he did not have permission to work because he claims that he had to sell his cafe business due to visa issues. The applicant also told the Tribunal that he did not pay taxes during that period. The applicant told the Tribunal that he had to work to support himself, but he agreed that his partner had supported him during that period and that he did not have to work to support himself but, rather, he did not wish to rely on his partner. The applicant’s preference to engage in employment when he knew that doing so was contrary to the immigration laws, simply because he wanted to be ‘a man’ and not rely on his partner, indicates, in the Tribunal’s view, the applicant’s general disregard for the Australian laws. This weighs, to some extent, against the visa grant.
CONCLUSION ON EXERCISE OF DISCRETION
The Tribunal has found that the applicant does not pass the character test and that the discretion to refuse to grant the visa is enlivened. In considering how to exercise the discretion, the Tribunal has considered the totality of the applicant’s circumstances, noting that the considerations set out in Direction 90 are not exhaustive.
The Tribunal has found the offences committed by the applicant to be very serious, having regard to their nature (involving drugs and family violence). The Tribunal has found that that the risk of reoffending continues to exist, even if that risk is low. Should the applicant engage in criminal conduct in the future, the Tribunal considers there could be significant adverse repercussions for the community, given the significant adverse effect of drugs on the community. The fact that the earlier offending involved family violence also weighs in favour of the visa refusal.
The Tribunal has formed the view that the protection of the community weighs heavily in favour of exercising the discretion to refuse to grant the visa. The Tribunal has also found, for the reasons set out above, that the expectations of the community would be such that the visa should not be granted.
The Tribunal accepts that the applicant has had some interactions with various children in his partner’s family but has formed the view that the best interests of the children would not be adversely affected by a decision to refuse to grant the visa to the applicant. That consideration is neutral.
In terms of other considerations, the Tribunal has formed the view that the refusal to grant the visa would not breach Australia’s non-refoulement obligations because the applicant has the opportunity of applying for another visa and if he is found to be owed protection obligations, he would not be removed from Australia. This consideration is neutral.
The Tribunal acknowledges that considerable hardship could be caused to the applicant and his partner (and potentially to other family members) if his visa application is refused because of the likely separation of the applicant and his family in Australia, or the hardship that would be caused to the applicant’s partner and others if she is to relocate to Macedonia. In particular, the Tribunal acknowledges Ms Z’s evidence about her physical and mental health and the evidence that the prospect of separation with the applicant has had on her mental health. The Tribunal has formed the view that there would be significant impediment of the applicant was to be removed from Australia. These factors weigh strongly in favour of the visa grant.

The Tribunal accepts that the applicant has been living in Australia for a lengthy period, has significant links to Australia and that Australian business interests may be adversely affected if the visa is not granted (which may lead to his partner’s departure from Australia). These factors also weigh in favour of visa grant.
Overall, the Tribunal has decided to give greater weight on the primary considerations such as the expectations of the Australian community, the fact that some of the offending involved family violence, and the protection of the Australian community. The Tribunal has formed the view that, in the particular circumstances of this case, these primary considerations outweigh other considerations that favour the visa grant.
Having regard to all the relevant circumstances, the Tribunal finds that the discretion should be exercised to refuse to grant the applicant the Class UK Partner visa.
DECISION
The Tribunal affirms the decision under review to refuse to grant the applicant the Class UK Partner visa.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kira Raif

……………....[sgd]........................
Associate
Dated: 06 September 2022

Date of hearing: 1 and 2 September 2022

Solicitors for the Applicant: Mr Nigel James Dobbie, Dobbie and Devine Immigration Lawyers

Solicitors for the Respondent: Mr Ryan Harvey, Australian Government Solicitor

14. 03/08/18	15. Supply prohibited drug > indictable quantity	16. Imprisonment 3 years and 4 months, non-parole period 2 years
17. 03/08/18	18. Supply prohibited drug >= commercial quantity	19. Imprisonment 5 years and 3 months, non-parole period 3 years and 5 months (Form 1 matters taken into account)
20. 03/08/18	21. Deal with property proceeds of crime < $100,000	22. Taken into account on Form 1
23. 21/03/11	24. Stalk / intimidate intend fear of physical / mental harm	25. s.9 bond – 12 months
26. 21/03/11	27. Possess prohibited drug	28. s. 9 bond – 12 months
29. 21/03/11	30. Supply a prohibited drug	31. 100 hours community service order
32. 01/10/09	33. Stalk / intimidate intend fear of physical /mental harm	34. s. 9 bond 12 months