XCBY and Minister for Immigration and Border Protection (Migration)

XCBY and Minister for Immigration and Border Protection (Migration) [2018] AATA 1853 (26 June 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1847
Re: XCBY
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:26 June 2018
Place:Sydney

The decision of the delegate of the Minister made on 5 April 2014 to refuse the Applicant’s application for a Bridging E (Class WE) visa is set aside.
The matter is remitted to the Minister for reconsideration with the following directions:
(a)that the discretion referred to in section 501(1) of the Migration Act 1958 (Cth) not be exercised in relation to the Applicant’s application for a Bridging E (Class WE) made 16 January 2018; and
(b)that the Applicant forthwith be granted a Bridging E (Class WE) visa in accordance with her application made 16 January 2018.

.........................[sgd]...............................................
J W Constance
Deputy President
Catchwords
MIGRATION – mandatory visa cancellation – character test – Ministerial Direction No. 65 – protection of the Australian community – seriousness and nature of conduct – drug trafficking – expectations of Australian community – risk to community should conduct be repeated – decision set aside and remitted for reconsideration
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
REASONS FOR DECISION
A. INTRODUCTION

In 2010 the Applicant entered Australia carrying illegal drugs. She was arrested at the airport and subsequently imprisoned. Since her release from prison in 2014 she has been held in immigration detention.
The Applicant has applied to the Tribunal to review a decision of a delegate of the Minister for Immigration and Border Protection to refuse her application for a Bridging Visa which would allow her to be released into the Australian community while the Minister gives further consideration to her application for a Protection Visa. The issue of visas is governed by the Migration Act 1958 (Cth).
For the reasons which follow, the delegate’s decision will be set aside. The matter will be remitted to the Minister with a direction that the Applicant be granted the Bridging Visa she seeks.
B. BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of the Applicant. I am satisfied that the Applicant was an honest witness who gave her evidence to the best of her recollection. At the hearing of this application, most of the evidence of the Applicant was unchallenged by the Minister. I shall refer to this evidence in detail later in these reasons.
The Applicant is a 38-year-old citizen of Cambodia, which is her country of birth.
In April 2010 the Applicant arrived in Australia by air. At the time she held a Tourist (Class TR-676) Visa. On her arrival she was interviewed by immigration and customs officials; during the interview she admitted that she had drugs concealed within her body. It was later determined that the Applicant had imported 356.6 grams of heroin with a pure quantity of 272.4 grams.
The Applicant was charged with importing a border controlled drug of a marketable quantity contrary to the Criminal Code 1995 (Cth). In February 2011 she was convicted in the District Court of New South Wales and sentenced to imprisonment for seven years and six months, commencing on the day on which the Applicant was taken into custody.[1] A non-parole period of four years and six months was set.
[1] Exhibit R1 at 22.
In January 2014 the Applicant lodged an application for a Protection (Class XA) Visa.
The Applicant was released on parole on 28 October 2014, being the earliest date on which she was eligible for release. As her application for a Protection Visa had not been dealt with at that time, she was immediately taken into immigration detention.
At the time of the hearing of the application presently before the Tribunal, the Applicant had been in immigration detention continuously since 28 October 2014. During that time there have been proceedings in this Tribunal and in the Federal Court of Australia concerning the Applicant’s applications for the Protection Visa and a previous application for a Bridging Visa.
On 23 September 2016 a delegate of the Minister refused the Applicant’s Protection Visa application. On 16 January 2018 the Tribunal set aside the delegate’s decision and remitted the application to the Minister for reconsideration. At the same time, the Tribunal directed that “notwithstanding that the applicant does not pass the character test, the discretion under s.501(1) of the Migration Act 1958 (Cth) is to be exercised in the applicant’s favour.”[2]
[2] Exhibit R1 at 55.
On the same day that the Tribunal set aside the delegate’s decision, the Applicant applied for a Bridging E (Class WE) Visa.[3] This application was refused by a delegate of the Minister on 5 April 2018.[4]
[3] Exhibit R1 at 46.
[4] Exhibit R1 at 15.
The Applicant applied to the Tribunal on 9 April 2018 to review the delegate’s decision to refuse her application for a Bridging Visa. This is the application now before me.
At the hearing, Counsel for the Minister informed me that the Minister had not lodged an appeal against the Tribunal’s decision of 16 January 2018 but that the Applicant had not been released from detention as the Minister was still considering what further action he may take. Counsel was unable to provide any further information as to when the Minister was likely to make a decision in relation to the Applicant.
C. MIGRATION ACT 1958 (CTH)
The discretion to refuse to grant a visa by reason of a person’s failure to satisfy the decision-maker that he/she passes the character test
Subsection 501(1) of the Act provides:
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.
Character test
Subsection 501(6) sets out the circumstances in which a person does not pass the “character test” referred to in subsection 501(1). It provides in part:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)…)
Subsection 501(7) provides, in part:
For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months
or more….
D. THE ISSUE FOR DETERMINATION
It is not in issue that the Applicant was sentenced to a term of imprisonment of more than 12 months and that, as a result, she does not pass the character test.
The only issue requiring determination is whether the discretion to refuse the Applicant’s application for a Bridging Visa (as provided in subsection 501(1) of the Act) should be exercised.
E. DIRECTION NO. 65
In exercise of the power given by s 499 of the Act, the previous Minister for Immigration and Border Protection issued Direction No. 65 on 22 December 2014. It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to… refuse a non-citizen’s visa under section 501….”[5]
[5] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, cl 5.
Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa. It provides, in part:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused … under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse … a non-citizen’s visa under section 501…. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in … Part B … of this Direction [emphasis added].
The Principles are set out in Paragraph 6.3:
Principles
(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The manner in which the discretion is to be exercised is set out in Paragraph 7. Informed by the principles in Paragraph 6.3, the decision-maker must take into account the considerations set out in Part B of the Direction. I will refer to these considerations in detail later in these reasons.
Paragraph 8 provides that a visa applicant “should have no expectation that a visa application will be approved.” Sub-paragraphs 8(2)-(5) provide:
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
F. CONSIDERATION
Paragraph 11 in Part B of Direction No.65 provides:
11 Primary considerations — visa applicants
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
F.1: The first primary consideration - Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 requires the decision-maker to have regard to:
·the principle 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;
·the fact that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct;
·the nature and seriousness of the non-citizens conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
The Applicant imported into Australia a marketable quantity of a highly addictive drug with the potential to cause substantial harm to many members of the Australian community. The District Court reflected the seriousness of this offence in imposing a term of imprisonment of seven years and six months and a non-parole period of four years and six months.
I am satisfied that the Applicant’s conduct is of a nature that was likely to harm members of the Australian community and is very serious. The Applicant accepts this.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The considerations to be taken into account in assessing the risk to the Australian community are set out in paragraph 11.1.2 of Part B which is annexed to these reasons. I am required to consider whether there is “an unacceptable risk of harm to individuals, groups or institutions in the Australian community”.[6] Further, I should have regard to the following:
·the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases;
·some conduct and the harm if it was repeated, is so serious that any likelihood that it may be repeated may be unacceptable; and
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants and there should be no expectation that such people should be allowed to remain permanently in Australia.
[6] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at 11.1.2(1).
In addition to the above, I have given careful consideration to the provisions of paragraph 11.1.2(3) which provides:
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(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 from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)    evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)    the duration of the intended stay in Australia.
The evidence of the Applicant
Whilst the circumstances leading up to the commission of the offence by the Applicant in no way reduce the seriousness of that offence, those circumstances are relevant to assessing the likelihood that she will engage in further criminal or other serious conduct should she be granted a Bridging Visa permitting her to reside in the Australian community while the Minister gives further consideration to her application for a Protection Visa.
In a statement made 10 November 2016,[7] the Applicant described the circumstances as follows:
[7] Exhibit R1 at 164-166.
5. Life in Cambodia was very difficult. My family was very poor and we struggled to earn enough money to pay for food or medicine.
…
7. I did not complete my education and left school when I was around 13 years old to work with my mother. We cooked and sold food produce to support our family.
8. When I was 15 I married my first husband and fell pregnant. My husband was abusive and treated me badly. I separated from him and returned to my family home before I could give birth to my daughter.
9. When I was about 16 my father died. We had to sell our home to cover medical expenses for my family.
10. After giving birth I began training and working as a hairdresser and I eventually opened up a salon to support my family.
11. Even after opening the salon our financial situation was very difficult. Some days I had to beg for rice to feed my children. When I had a miscarriage I was publicly humiliated because I could not afford to pay the doctor. I also had complications from the miscarriage (bleeding) but could not afford to pay for medication.
12. In about 2005 I married my second husband […]. He was a very good man and our relationship was filled with love and kindness. We had two children together.
…
14. To purchase cosmetic and hairdressing products for my hair salon I would make trips to Phnom Penh.
15. On one of those trips I met and became friends with a Vietnamese woman […]. I told her about my life and my financial difficulties. I told her that I had a lot of debt and did not earn enough money to pay it back. I explained to her that some days I did not have enough money to buy rice for my children.
16. [The woman] was very nice to me and said that she knew someone who could lend me money without charging interest. I initially refused the offer. [She] approached me again with the same offer but I refused again.
17. However, as my situation became worse I contacted [the woman] who arranged for me to meet with a man who gave me an interest free loan of $2000.
18. A few months later the group demanded the money back and told me that if I did not make the repayment in full that they would hurt my family. I was later confronted by the same people who told me that if I could not pay the money back I had to smuggle illegal substances to another country.
19. I was initially unwilling to cooperate but agreed when they made threats against my husband and my children. They said that I would be rewarded with 10,000 dollars if I was successful. I was told to go to a bus stop where I was collected and taken to a house where I was made to swallow packets of drugs and also conceal drugs internally at gunpoint.
20. I was not allowed to leave the house and was taken to the airport. When I arrived in Australia I was stopped and questioned by officials. I confessed to concealing drugs inside my body.
I accept this evidence. It was not challenged by the Minister.
The Applicant also gave evidence that she regrets and feels ashamed of her conduct in breaking the law and participating in a trade that takes away people’s lives and their livelihoods. She accepted that her conduct was “very serious”[8] and said that she is determined to not re-offend. She does not want to return to gaol and wishes to leave immigration detention and to be able to support her children and be with them.[9]
[8] Exhibit R1 at 167.
[9] Exhibit R1 at164-168.

I accept the evidence set out in the preceding paragraph. It was not challenged by the Minister.
Information and evidence from independent and authoritative sources on the likelihood of the Applicant re-offending (para. 11.1.2(3)(b)(i))
Before the Applicant was sentenced in the District Court she was examined by a Forensic Psychologist, Ms Case.
In a report dated 9 September 2010,[10] Ms Case stated:
From the available information, [the Applicant] appears to be a naive, vulnerable woman. Her involvement in the index offences [sic] appears to be as a direct consequence of her naive decision to obtain money through illegal means due to her financial destitution and debts. Her below average intelligence, limited education, and financial burdens are likely to have contributed to her desperation. Prior to the index offence however, [the Applicant] described an organised family life and prosocial lifestyle. She has no criminal history, was not engaging in any substance use and has few risk factors for recidivism. She says she was open to receiving professional assistance in custody if deemed appropriate [emphasis added]. [11]
[10] Exhibit R1 at 170.
[11] Exhibit R1 at 177.
The report of Ms Case was admitted into evidence with the consent of the Minister and was unchallenged by him. The Minister did not provide any evidence to the Tribunal from a health professional to suggest that the opinions of Ms Case should not be accepted.
In sentencing the Applicant in the District Court, Judge Zahra concluded that:
The offender faces serving a sentence of some length which will act as a significant deterrence to her. Take into account the offender’s background it is reasonable to conclude that the offender is unlikely to re offend [emphasis added].[12]
[12] Exhibit R1 at 38.
On 3 January 2013,[13] Ms Fender, a Services and Programs Officer of Corrective Services NSW, reported that:
With assistance prior to release connecting her into community agencies this SAPO considers that [the Applicant] would be able to integrate into the community. Given the amount of education courses she has undertaken whilst in custody and her previous experience in the hair and beauty industry, it is not unreasonable to believe she would find suitable employment. Once employed, she would be able to maintain herself and learn to become familiar with the Australian way of life.[14]
[13] Exhibit R1 at 113.
[14] Ibid at 115.
Again, this report was taken into evidence with the consent of the Minister and there is no evidence to suggest that I should not accept it.
Evidence of rehabilitation achieved by the time of the decision (para. 11.1.2(3)(b)(ii))
The report of Ms Fender, referred to above, indicates that by 2013 the Applicant had undergone a successful rehabilitation program and was likely to be able to successfully integrate into the community. This evidence is supported by the fact that the Applicant was granted parole on the first day on which she was eligible. Although I have no evidence of the deliberations of the Parole Board, it is reasonable to conclude that the Board was satisfied that the Applicant had been successful in her efforts to rehabilitate.
The duration of the intended stay in Australia (para. 11.1.2(3)(b)(iii))
I am unable to determine the likely duration of the Applicant’s stay in Australia. It is dependent upon decisions yet to be made as to her entitlement to long-term residency in this country. However, bearing in mind that the application under consideration is for a Bridging Visa pending determination of the application for a Protection Visa, it is reasonable to assume that the Applicant’s stay in Australia under the type of visa I am considering will be relatively short-term.
In these circumstances, I am satisfied on the balance of probabilities that the Applicant’s stay in Australia in accordance with a Bridging Visa, will be short-term. This will decrease the likelihood, if any, of the Applicant re-offending whilst living in the community in accordance with such a visa. In this regard I note the provisions of paragraph 11.1.2(4), which state that decision-makers should consider the risk of harm in the context of the purpose of the intended stay and the type of visa being applied for.
F.2: The second Primary Consideration - the best interest of minor children in Australia affected by the decision
There are no minor children in Australia who are affected by this decision.
F.3: The third Primary Consideration – expectations of the Australian community
Paragraph 11.3(1) of the Ministerial Direction No. 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In matters such as this it is always difficult to assess the expectations of the Australian community. I have no doubt that there will be a wide range of views within the community as to what the community would expect in the circumstances of this application.
Direction No. 65 does provide some indication as to community expectation, particularly when the offence committed is very serious and the Applicant has never lived in Australia. Further, it is important to consider that the Applicant entered Australia for the sole purpose of bringing a significant amount of illegal drugs with her.
I also take into account the views of the Government expressed in the Direction. In this regard I take into account the provisions of paragraph 6.2 which sets out the principles of General Guidance. I note that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.
The Principles are set out in paragraph 6.3 and have been referred to earlier in these reasons. I have taken them into account.
However, considering all of the relevant evidence in the light of the Principles, I have come to the conclusion that fair-minded members of the Australian community, with an understanding of the law to be applied and fully aware of the facts of this matter, would expect that the Applicant be granted a Bridging Visa to allow her to be released from immigration detention and to live in the Australian community whilst the Minister considers her application for a Protection Visa. I emphasise that the application before me is an application for a Bridging Visa, and not a Protection Visa. Unlike a Protection Visa, a Bridging Visa does not allow a holder to remain in Australia on a long-term basis.
Although the Applicant’s offence is very serious, I have formed the view I have set out above, taking into account the following matters:
·the Applicant has been determined to be a person to whom Australia owes an obligation under international law not to return her to her home country; this was conceded by the Minister in the proceedings in the Tribunal relating to the Applicant’s application for a Protection Visa[15] and he repeated this concession in this application;
·the Applicant has been in immigration detention for three years and eight months since her release from prison; during this time the full term of her prison sentence expired;
·she has been held in immigration detention for 22 weeks since the Tribunal directed that she be granted a Protection Visa which would permit her to live in the Australian community rather than in immigration detention;
·the Minister is unable to inform the Applicant or the Tribunal as to the time it may take to make a decision as to the Applicant’s residency status;
·the Minister is entitled to challenge the Tribunal’s decision in the Federal Court if he considers that the Tribunal has made an error of law in reaching the decision it did; he has not done so;
·the risk of the Applicant re-offending when she was living in the community in accordance with a Bridging Visa is low, particularly as it is likely to be for a relatively short period; and
·the Australian community values very highly the right of an individual to be free of administrative detention unless there are sound reasons for that detention in accordance with law; the community sees this right as one which many thousands of Australians have fought to protect and for which many thousands have died.
[15] Exhibit R1 at 55.
F.4: Other considerations
Paragraph 12 of the Direction provides:
12 Other considerations – visa applicants
a.In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
1.International non-refoulement obligations;
2.Impact on family members;
3.Impact on victims;
4.Impact on Australian business interests.
International non-refoulement obligations (para.12.1)
Paragraph 12.1(1) provides, in part:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
To the extent that it is relevant in this application for a Bridging Visa, the Minister accepts that the consideration of international non-refoulement obligations favours a decision to grant a visa to the Applicant.[16]
[16] Respondent’s Statement of Facts, Issues and Contentions dated 22 May 2018 at [75].
The remaining “Other Considerations”
The remaining “Other Considerations” listed in paragraph 12 are not relevant to this application. However, the list is not exclusive.
A further consideration which is of significant weight is the support which would be available to the Applicant should she be able to live in the Australian community pending either the grant of a Protection Visa in accordance with the previous decision of the Tribunal or a further decision of the Minister.
Mr R, the Applicant’s fiancé, gave evidence and provided a statement dated 7 May 2018.[17]
[17] Exhibit A5.
Mr R has known the Applicant for approximately three years. They met in the Detention Centre. He has full-time employment and will provide accommodation and support for the Applicant should she be released. Mr R is living in Australia as the holder of a Bridging Visa and is awaiting the outcome of his application for a Permanent Visa.
Ms T provided a statement dated 4 May 2018[18] and gave evidence.
[18] Exhibit A4.
Ms T has been visiting detainees in Villawood Detention Centre on a regular basis since August 2014. She has known the Applicant since September 2014; they have become close friends. Ms T has visited the Applicant’s family in Cambodia recently. Should the Applicant be released from detention Ms T is willing to provide her with accommodation and financial and emotional support if necessary.
Dr B and Ms S gave evidence and provided a joint statement.[19] They are a married couple.
[19] Exhibit A6.
Dr B and Ms S have visited detainees in the Centre for the last two years and have known the Applicant for most of that time. They will be part of a support network for the Applicant should she be able to live in the Australian community and will provide accommodation and financial support for her should this be necessary.
G. THE BALANCING EXERCISE
The Minister argued that the offence committed by the Applicant is of such seriousness that, when considered with the other primary considerations, the discretion to refuse to grant her a Bridging visa should be exercised. In the Minister’s Statement of Facts, Issues and Contentions[20] it was put that:
Critically, the Applicant’s commission of this offence was the sole purpose of her travel to, and is therefore the sole reason for her current presence in, Australia. The Applicant had never previously travelled to Australia, has no ties to Australia and has never spent any time in the Australian community. In those circumstances, to grant the Applicant a visa would be to reward her for her criminal conduct and to send a dangerous message to other would-be drug smugglers.
[20] Filed 22 May 2018 at [72].
While I agree that the offence committed by the Applicant is very serious, I do not accept that this consideration outweighs all others. In my view, all other relevant considerations favour the granting of the Applicant’s application for a Bridging Visa. I repeat my earlier observation that this is not an application for a visa to permit the Applicant to live in the Australian community on a long-term basis.
Contrary to the submissions of the Minister, I am satisfied that the risk of the Applicant causing harm to the community by criminal or other serious conduct should she be released pending a decision on her Protection Visa application, is low. The evidence I have referred to earlier in these reasons points very strongly to the Applicant’s risk of re-offending being low.
In reaching this conclusion I have also taken into account that the Applicant will not be in a position to repeat the offence of importing illegal drugs into this country. If she leaves Australia, her Bridging Visa will automatically be cancelled and she will not be able to return. In her circumstances, the chances of her becoming otherwise involved in the illegal drug trade in Australia are remote.
I have also taken into account the support which will be available to her from Ms T and her friends should she be released from detention. This is an additional factor that will make it unlikely that the Applicant will re-offend.
Further, having listened to, and observed, the Applicant give evidence, I am satisfied that she is genuinely remorseful of her past conduct and now appreciates its seriousness as a result of the eight years she has been detained in prison and immigration detention. I am satisfied also that the Applicant has benefitted from the various courses she has been able to undertake.
I do not accept the Minister’s argument that the Australian community expects that the Applicant would be refused a Bridging Visa in the circumstances of this application. I have previously set out my reasons for this conclusion.
Taking all of the evidence into account and guided by the Principles set out in Direction No 65, I am satisfied that the relevant considerations weigh decisively in favour of not exercising the discretion to refuse the Applicant’s application for a Bridging Visa.
H. CONCLUSION
The decision of the delegate of the Minister made on 5 April 2014 to refuse the Applicant’s application for a Bridging E (Class WE) visa will be set aside.
The matter will be remitted to the Minister for reconsideration with the following directions:
(c)that the discretion referred to in section 501(1) of the Migration Act 1958 (Cth) not be exercised in relation to the Applicant’s application for a Bridging E (Class WE) made 16 January 2018; and
(d)that the Applicant forthwith be granted a Bridging E (Class WE) visa in accordance with her application made 16 January 2018.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of

.............................[sgd]...........................................
Associate
Dated: 26 June 2018

Date(s) of hearing: 5 June 2018

Solicitors for the Applicant: Mr A Mojtahedi, Immigration Advice & Rights Centre

Solicitors for the Respondent: Ms L Crick, Clayton Utz
ANNEXURE
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(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 from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii) evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii) the duration of the intended stay in Australia.

(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

[2018] AATA 1853

26 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Date(s) of hearing:	5 June 2018
Solicitors for the Applicant:	Mr A Mojtahedi, Immigration Advice & Rights Centre
Solicitors for the Respondent:	Ms L Crick, Clayton Utz