XGDG and Minister for Home Affairs (Migration)

XGDG and Minister for Home Affairs (Migration) [2018] AATA 5927 (26 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4496
Re:XGDG
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:26 October 2018
Place:Melbourne

The Tribunal decides to:
1.set aside the decision of the delegate dated 6 August 2018; and
2.remit the matter to the Respondent with a direction that the Applicant’s application for a Safe Haven Enterprise (Class XE) visa not be refused under section 501 of the Migration Act 1958.

...............[sgd]......................................
Senior Member D. J. Morris
Catchwords
MIGRATION – refusal of protection visa – consideration of character test – applicant charged with serious offences – all charges subsequently withdrawn – absence of other offending – applicant proximate to proven serious offence occurring – risk of applicant engaging in criminal conduct in Australia – assessment of risk – past and present general conduct – applicant satisfies character test – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33, 35(2), 35(3)
Australian Citizenship Act 2007 (Cth)
Criminal Code Act (NT), s 155
Migration Act 1958, ss 499, 501(1), 506(6)(c)(ii), 501(6)(d)(i), 501K
Cases
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Lowns & Anor v Woods & Ors (1996) Aust.Torts Reports 81-376
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10
[name of case redacted]
Salman v Chute & Anor [1994] NTSC 21
Schuster-McFadyen v Minister for Immigration and Citizenship; Re: (2011) 124 ALD 68
Zheng and Minister for Immigration and Citizenship; Re: [2011] AATA 304
Secondary Materials
Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 22 December 2014)
Government of South Australia, Department of Planning, Transport and Infrastructure, The Hazard Perception Test < (accessed 22 October 2018).
Ugar Nedim, Is It a Crime Not to Help Someone in Danger? (12 April 2015) Sydney Criminal Lawyers <sydneycriminallawyers.com.au> (accessed 22 October 2018).
REASONS FOR DECISION
Senior Member D. J. Morris
26 October 2018
BACKGROUND

On 6 February 2018 the Applicant in this matter received a notice from a delegate of the Minister for Home Affairs (the Minister) informing him that the Minister or the delegate intended to consider whether there were grounds to refuse to grant him a Safe Haven Enterprise (Class XE) visa under section 501(1) of the Migration Act 1958 (the Act).
On 6 August 2018 a delegate of the Minister decided to exercise the discretion to refuse to grant the Applicant’s application for the visa under section 501(1) of the Act. On 11 August 2018 the Applicant lodged an application for review of the refusal decision with the Tribunal.
Section 501K of the Act provides that if a person applies to the Tribunal for review in the person’s capacity as, inter alia, a person who applied for a protection visa, the Tribunal must not publish any information which may identify the person or any relative or other dependant of the person. A Safe Haven Enterprise (Class XE) visa is in the category of a protection visa so, under section 501K(2) of the Act, the Tribunal must not publish (in electronic form or otherwise), in relation to this review, any information which may identify him or any relative or dependant person. Accordingly, in these reasons the Applicant is identified by the pseudonym “XGDG” and the identity of other persons and events will be modified to comply with this part of the Act.
The hearing was held on 17 and 18 October 2018. XGDG was represented by Mr Greg Hughan of counsel, instructed by Refugee Legal Community Legal Centre. XGDG gave evidence and was cross-examined by the Respondent’s representative, Mr Jake Kyranis of Sparke Helmore Lawyers. The Tribunal was assisted by an interpreter in the Tamil language.
The Respondent tendered a volume of documents (GD) relating to the refusal decision, which were taken into evidence. The Tribunal also had regard to Statements of Facts, Issues and Contentions submitted by both parties and a Statement in Reply submitted by XGDG. In addition the following documents were taken into evidence:
·Statutory declaration of XGDG, lodged with the Tribunal and attested to at the hearing by the Applicant on 18 October 2018 (Exhibit A1);
·Redacted transcript of committal proceedings before the Magistrates’ Court of Victoria, dated 30 October 2017 (Exhibit A2);
·Statutory declaration of Vimalathevy Sinnathurai, declared at Kilkenny in South Australia on 2 October 2018 (Exhibit A3); and
·[name of case redacted] (Exhibit A4).
At the commencement of the hearing, the Tribunal made directions under section 35(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that the hearing is to take place in private and directs that only the following persons may be present: the Applicant; counsel for the parties and instructing officers; an interpreter appointed by the Tribunal; officers of the Tribunal; and escort officers employed on behalf of the Department of Home Affairs (the Department).
The Tribunal also directed under section 35(3) of the AAT Act that publication or other disclosure of the Tribunal’s reasons is restricted to the Applicant and other persons directly involved in the preparation and conduct of proceedings on his behalf; the Respondent, its legal advisers and other persons directly involved in the preparation and conduct of proceedings on the Minister’s behalf; and officers of the Tribunal. The Tribunal may make further directions after matters before the Courts relevant to evidence in this review are finalised.
The Tribunal explained that it was making these directions because two other persons await criminal trials and wants to avoid any possibility that publication of these reasons before the outcome of those trials may affect those curial proceedings. Parties did not object to these directions being made.
THE LEGISLATIVE FRAMEWORK
Under section 501(1) of the Act, the Tribunal, acting as the decision-maker, may decide that an applicant satisfies the character test requirements and, if so, the decision on the visa application is substituted with a direction to the Department that that requirement is met. The character test is set out at section 501(6) of the Act.
The Respondent refused XGDG’s visa application under section 501(6)(d)(i):
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
Otherwise the person passes the character test.
If the Tribunal is not satisfied that XGDG passes the character test, the next step is to decide whether the discretion should be exercised to refuse to grant his visa application (see Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, at [16]). In considering the exercise of that discretionary power, where the Minister has issued a written direction under section 499(1) of the Act about the performance and exercise of functions under the Act, decision-makers (including the Tribunal) must under section 499(2A) comply with any such direction.
On 22 December 2014 the Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
Relevantly, the Direction includes the following 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 a 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.
In the case of deciding whether to refuse a non-citizen’s visa application, the Direction requires a decision-maker to take into account considerations set out in Part B, which is divided into primary considerations and other considerations.
The primary considerations in Part B are set out in paragraph 11(1):
·    Protection of the Australian community from criminal or other serious conduct;
·    The best interests of minor children in Australia; and
·    Expectations of the Australian Community.
A non-exhaustive list of other considerations set out in paragraph 12(1) of the Direction are:
·    International non-refoulement obligations;
·    Impact on family members;
·    Impact on victims;
·    Impact on Australian business interests.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)). Re: Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68 considered how decision-makers should approach considerations in an earlier version of the Direction, and the Court found that the Tribunal can give equal or greater weight to any consideration.
Importantly, the Tribunal is not constrained to consider only the considerations set out in the Direction and should also consider any other factor that is directly relevant to the exercise of the discretion, taking into account the particular circumstances of the Applicant.
The Applicant’s immigration history
XGDG was born in 1979 in Sri Lanka and is a citizen of that country. His immigration history is briefly as follows (GD1, p 5). XGDG first arrived in Australia at the Territory of the Cocos (Keeling) Islands by boat on 10 September 2012 as an illegal maritime arrival. He was placed in immigration detention on arrival and remained there until 12 February 2013 when he was granted a Temporary Safe Haven (Class UJ) visa. XGDG was subsequently granted a succession of Bridging E (Class WE) visas. The most recent of which was granted on 10 February 2016 and cancelled on 5 December2016 as XGDG was charged with criminal offences. XGDG was taken back into immigration detention on 11 January 2017 (GD13, p 101) where he remains. On 23 February 2017 XGDG was refused a Criminal Justice (Class ZB) visa.
The Applicant’s conduct
On 20 November 2016 XGDG was arrested by South Australian Police in relation to the attempted murder of a woman in Victoria. He was extradited to Victoria and interviewed by Victoria Police and then charged with the following offences: Attempted murder; Intentionally Cause Serious Injury; two counts of Reckless Conduct Endangering life; Unlicensed driving.
The circumstances that led to the placing of these charges were as follows, summarised from the police Summary of Charges (GD7, p 65). Importantly, in his evidence XGDG disputed parts of the following police summary.
Late in October 2016 XGDG travelled from his residence in Adelaide to visit a friend who he knew from Sri Lanka, Mr MS. On 25 October 2016 in the early evening, XGDG and Mr MS drove to a car park adjacent to a Coles supermarket in Dandenong. They travelled in a white van owned by Mr MS, but XGDG drove because Mr MS had lost his driver licence. There were two females at the car park, Ms KS and her niece, Ms SF. Ms KS had a conversation with Mr MS and then Mr MS invited both of the females to travel to a nearby park and have a drink. Mr MS then went into the Coles supermarket and purchased a large bottle of cola. XGDG and Mr MS then went into an adjacent bottle shop and purchased whiskey. XGDG and Mr MS took photographs of each other with the alcohol.
They return to the van and the four then all travelled in it to a nearby park. After drinking for a period, Mr MS and Ms SF went further into the park and had sexual intercourse. XGDG remained with Ms KS sitting in and around the van. XGDG then telephoned a friend, Mr IA, and asked him to come to the park to pick him up. XGDG then drove the van to a nearby service station, accompanied by Ms KS. They met up with Mr IA and he then followed them in his silver sedan back to the park.
Mr MS and Ms SF then returned from further away in the park and Mr MS told XGDG that they had had sexual intercourse. At around 10 pm the two females decided that they wanted to return to Dandenong. An argument ensued with XGDG and Mr MS. Ms SF told the police the argument was about payment for a sex act. Ms KS demanded immediate payment from Mr MS but was told she would be paid tomorrow morning.
Ms SF then said XGDG and Mr MS got back into the van. Mr IA remained in his sedan and then the driver of the van reversed quickly, striking Ms KS and she went under the vehicle. The van was then driven forward, again over Ms KS, and then reversed and drove away. A witness living nearby described the actions of the van driver as a clear attempt to run over Ms KS on several occasions. The sedan, driven by Mr IA, then reversed and did a U-turn, following the van and according to Ms SF also drove over the prone Ms KS.
Mr MS then drove to the house of another friend and asked for his friend to drive him home as he was intoxicated. Mr MS returned to his residence and is spoken to by a police officer in a police vehicle proceeding to the park to attend the incident. He denied any knowledge of the incident to the police and while he was talking to them he was called by XGDG who informed him that Ms KS had been run over and was still on the ground. He later informed XGDG not to worry about the incident as he would take care of it.
The police summary describes the serious injuries sustained by Ms KS:
[Ms KS] was left motionless on the road having sustained two collapsed/punctured lungs where the lower lobes had burst. A left clavicle fracture and misplacement as well as a scapular fracture. 10 broken ribs on the Right side and 10 out of 11 broken ribs on the left side some multiple fractures to each rib.
Spinal fractures were Ligament tears from vertebrae Ct-11 which further caused Disc spacing. L3 and 4 vertebrae fractures where the L4 fracture was a burst style break.
This has caused [Ms KS] to be treated at the Alfred Hospital’s intensive care unit and being placed in a Coma. [Ms KS] has also required the assistance of a breathing apparatus for a period of several weeks in order to sustain life. [Ms KS] will have to undergo a long period of rehabilitation and it is not known if she will recover fully from the injuries.
XGDG purchased an airline ticket the following day, 26 October 2016, and that evening flew back to Adelaide. On 2 November 2016 XGDG attended an interview at the Australian Migrant Resource Centre and provided a mobile number which the police found had been called by Mr MS numerous times on the day of the incident. The police further identified Mr MS and XGDG from closed circuit television footage from the bottle shop where they purchased the alcohol that day.
On 20 November 2016 South Australian Police, acting at the request of Victoria Police, arrested XGDG in Adelaide. On 21 November 2016 Victoria Police officers travelled to Adelaide and interviewed XGDG at Port Adelaide Police Station. XGDG told the officers what happened at the park on 25 October 2016 and stated that it was Mr MS who had driven the van which hit Ms KS, and indicated that he left the scene without rendering assistance with Mr IA.
XGDG was remanded into custody, and extradited to Victoria. On 23 November 2016 he was charged with attempted murder and the other charges listed above (GD9, p 74). XGDG was held in custody for forty days. On 11 January 2017 he appeared before a Magistrate and applied for bail, which was granted. On the granting of bail XGDG was immediately taken into immigration detention by officers of the Department.
On 30 October 2017 all the charges against XGDG were withdrawn (GD25, p 191-195). On the same day XGDG appeared in committal proceedings in the Magistrates’ Court relating to the forthcoming criminal trial of Mr MS, and gave evidence for the prosecution (Exhibit A2).
The Respondent’s contentions
The Respondent conceded that the charges against XGDG were eventually withdrawn and that he ultimately gave evidence against the driver which contributed to Mr MS being convicted. The Respondent contended that the Applicant essentially acquiesced in the offending conduct, failed to assist the victim despite being aware that she had been run over and failed to call police.
The Respondent submitted that a threshold issue is whether XGDG fails to satisfy the character test as defined in section 501(6)(d)(i) or section 501(6)(c)(ii) of the Act. The Respondent accepted that the latter section was not considered by the Minister’s delegate but that there was no reason to preclude its consideration in this review.
Section 501(6)(c)(ii) reads:
(6)         For the purposes of this section, a person does not pass the character test if:
…
(c)       having regard to either or both of the following:
(i)        …
(ii)       the person’s past and present general conduct;
the person is not of good character;…
The Respondent submitted that:
The applicant’s conduct in the event described…was so far below the standards of decency expected by members of the Australian community towards each other that the applicant would be regarded as not being of good character by reason of this incident alone. There would be revulsion at the notion that the applicant should enjoy the benefit of participating in the Australian community.

The Respondent contended that if the Tribunal accepts that XGDG fails the character test, the Tribunal is bound to comply with Direction No. 65 in respect of the exercise of its discretion. The Respondent made submissions that the primary considerations in the Direction of protection of the Australian community and expectations of the Australian community should be weighed adversely to XGDG.
The Respondent further conceded that XGDG is a person to whom Australia owes protection obligations, in terms of the part of the Direction relating to international non-refoulement obligations and stated:
There is no evidence before the Tribunal about whether return of the applicant to Sri Lanka is, or is not, reasonably practical. Therefore, the most that can be said at this stage is that return to Sri Lanka is but one possibility facing the applicant if he is not granted the visa. There are other possibilities: (i) the applicant may enjoy the benefit of an exercise of discretion by the Minister under ss 48B or 195A; or (ii) he may be the subject of a residence determination under Subdiv B of Div 7 of Pt 2; or (iii) he may be resettled in a third country. Further still, history teaches that the risk of persecution fluctuates over time, and it may be that any return to Sri Lanka in the future is free from such risks.
It is accepted that it is probable that the applicant would remain in immigration detention until one of these possibilities eventuates.
The Respondent concluded that the possibilities that face the Applicant if his visa is refused do not justify granting him the visa. The Respondent contended that XGDG has shown himself to be a person who presents a risk of criminal offending or a person who is of poor general character.
The Applicant’s contentions
Counsel for the Applicant recited the circumstances of XGDG’s arrest by South Australian Police on 22 November 2016 and stated that this was his first dealing with law enforcement authorities in Australia. Mr Hughan stated that the Victorian Office of the Director of Public Prosecutions withdrew all charges against XGDG on 30 October 2017 and he subsequently became a prosecution witness and gave evidence at the committal hearing that day.
In July 2018 just before the criminal trial of Mr MS was due to commence, Mr MS pleaded guilty before His Honour Justice Champion to the offences of Dangerous driving causing injury and Driving while disqualified. On [date redacted] Mr MS was sentenced to two years’ and four months’ imprisonment with a non-parole period of 18 months.
Mr Hughan said that, because of Mr MS’s plea, XGDG did not have to give evidence on that trial before the Supreme Court but he is expected to be a prosecution witness on a second trial Mr MS is facing in relation to alleged sexual offending which is the subject of suppression orders made by the Court. He is also expected to be a prosecution witness on a trial Mr IA is facing in August 2019 in relation to charges against him in relation to the incident on 25 October 2016.
Mr Hughan submitted that XGDG does not have any criminal history and that he had been of good behaviour while in custody and while in immigration detention.
In terms of the consideration of section 501(6)(d) of the Act, Mr Hughan submitted that the Tribunal must look at future risk, and drew attention to Annex A, Section 2 of the Direction which relevantly states, at paragraph 6 (3):
It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
Mr Hughan submitted that there is no logical basis to infer that because XGDG was a witness to an incident which involved a woman he had just met suffering serious injury he therefore presents a future risk of engaging in criminal conduct. His good conduct after the incident, in prison and in detention and by giving evidence is, he submitted, antithetical to the prospect of a finding pursuant to section 501(6)(d)(i) of the Act.
Mr Hughan submitted that, in the event the Tribunal is not satisfied that XGDG passes the character test, it should exercise the discretion pursuant to section 501(1) of the Act favourably to the Applicant. Mr Hughan submitted that XGDG presents no risk of future harm to the community.
The Applicant’s evidence
XGDG gave extensive evidence of the incident on 25 October 2016. He stated that he had met Mr MS in Sri Lanka on one previous occasion and once before in Australia. He had come to Melbourne on 15 October 2016 looking for work. He said he did not come at the invitation of Mr MS, and was staying with another friend. Mr MS contacted XGDG and said he had found him a job in a tile shop. XGDG said that his employer wanted to give him a week on probation to see how he worked before making any more permanent offer.
XGDG told the hearing that on 25 October 2016 he had called Mr MS to pick him up for work because he did not have a vehicle. Mr MS agreed and a workmate of XGDG dropped him at a petrol station where he met up with Mr MS. Mr MS took him home and then said he wanted to go to a local shopping centre and asked XGDG to drive him because he did not have a licence (even though he had been driving that day).
XGDG said he drove Mr MS to the shopping centre where they met up with the two females mentioned above, Ms KS and Ms SF. The events unfolded essentially as outlined in the police summary, though XGDG said that Mr MS did not tell him that he had had sexual relations with Ms SF. He also said that the argument with Ms KS was about money for a taxi fare, and was between Mr MS and Ms KS, not involving XGDG.
XGDG said, at the time of the argument, he was sitting in the passenger seat of the sedan driven to the park by Mr IA. He saw Mr MS reverse the van, which was parked parallel to the other vehicle but just in front, very fast and sharply. XGDG then said he heard a noise like someone being hit. XGDG then said he heard the younger female screaming. He said he did not see the van strike Ms KS, but guessed that someone had been hit. He said Mr MS did not stop, and simply drove off.
XGDG said he telephoned Mr MS and told him he had hit someone. He said Mr MS told him he was coming back and then ended the call. Mr IA then started the car and just started driving. XGDG said he was scared and that Mr IA told him he was scared, too, and just wanted to go. XGDG said he did not see or feel the sedan strike anyone. XGDG said they left the park and he asked Mr IA to stop the car five or six minutes later, down the road. He said they were then about 400 metres away (but it must have been further away, given the time lag) and he called Mr MS again. He said Mr MS told him he was with the police and XGDG said he could hear the voice of a police officer in the background of the call.
XGDG said he then went to the house he was staying in. He did not speak to Mr MS again that evening but around 10 am the following day he rang him from his work at the tile shop and asked him what had happened with the police. XGDG told the Tribunal Mr MS told him that he had spoken to the police and solved it. XGDG said in answer to a direct question from the Tribunal that he felt Mr MS was probably lying to him, but he did not want go into detail about the matter with Mr MS.
In terms of his returning to South Australia on 26 October 2016, XGDG said that he worked that morning and then was paid for his weeks’ work and, using part of that money, booked his flight home. He said that he had a booked appointment with the South Australian Department of Planning, Transport and Infrastructure for a hazard perception driving test on the following morning. He provided a Client Report from that authority dated 27 October 2016 (GD17, p 122) confirming he had sat and successfully completed that test.
XGDG said that he had an appointment with his psychologist on 28 October 2016 and also a long-standing appointment at the Royal Adelaide Hospital chest clinic on 31 October 2016. Before the Tribunal was a copy of a letter to XGDG from the Administration Officer of the chest clinic dated 27 June 2016 which confirmed the appointment time of 11.40 am on 31 October 2016 (GD18, p 123).
Mr Kyranis asked XGDG under cross-examination why he didn’t himself call the police. XGDG said for two reasons: first, that he does not speak English well enough and, second, he was also scared. He agreed there was no urgency for him to leave the park when he did, but pointed out that he was not driving the sedan and that Mr IA, who was the driver, said he wanted to leave.
XGDG said he told the police, from the first time he was interviewed, that Mr MS was driving the van which hit Ms KS, and that he had told the same story from beginning to end. He said that he felt Mr MS was at fault because there was no reason for him to have reversed the van at such a speed, but he could not say whether he thought Mr MS had struck the woman deliberately or not.
The Applicant’s closing submissions
Mr Hughan submitted that the Respondent’s assertion that XGDG is not of good character stems from him having some moral culpability for not rendering assistance. He submitted that XGDG has given reasons for not calling the ‘000’ emergency number because he did not have a good command of English and that he had telephoned Mr MS who told him he was with the police and matters were in hand. Mr Hughan said that perhaps XGDG should have done more, but that the test is not whether XGDG was acting as a ‘good citizen’ but whether he is not of good character under section 501(6)(c)(ii) of the Act, having regard to his past and present general conduct.
Mr Hughan said that XGDG always intended to return to Adelaide the following day because he had a number of appointments there, the first being the driving test booked for 27 October 2016. Mr Hughan said that there is nothing in XGDG’s history in immigration detention that suggests he is not of good character and, to the contrary, he has undertaken the onerous task of giving evidence for the prosecution against Mr MS.
Mr Hughan drew the Tribunal’s attention to the Federal Court decisions of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 (Godley I), and on appeal to the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 (Godley II), which considered the application of the character test under section 501 of the Act.
The Respondent’s closing submissions
Mr Kyranis submitted that it was open to the Tribunal to find that XGDG did not pass the character test under either sections 501(6)(c)(ii) or 501(6)(d)(i) of the Act. Mr Kyranis said that he agreed with Mr Hughan that the Tribunal should look to paragraph 6.2 in Annex A – Application of the Character Test, which reads:
The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
The Respondent acknowledged that the risk XGDG will commit a criminal offence in the future was not a significant risk but submitted that it was more than a remote risk. He said that XGDG willingly put himself at the place where events escalated into serious violence and may find himself in the future in such circumstances.
Mr Kyranis said that that the Respondent accepts that XGDG himself was not driving but notes that he did not ask Mr IA to stay or to drive back to the park, and didn’t get out of the car when he thought Ms KS had been hit by the van. He reminded the Tribunal that XGDG confirmed in evidence that, when he left the scene, he did not know whether Ms KS was dead or alive.
Mr Kyranis said that if the Tribunal was not minded to accept there was more than a remote risk of future criminal conduct, the Minister’s view was that it should in the alternative then address section 501(6)(c)(ii) in terms of XGDG’s past and present general conduct. He said that XGDG’s behaviour was far below the standards of decency expected by the Australian community. XGDG left the scene and did not contact the police, and he admitted that, when he did speak to Mr MS the following day and was told that the matter was sorted, XGDG thought Mr MS was lying to him.
CONSIDERATION
The circumstances that XGDG found himself in on 25 October 2016 were insalubrious, to say the least, but in this consideration it is important that the Tribunal carefully distinguishes between XGDG’s level of involvement and the involvement of the other two principal actors that day, Mr MS and Mr IA. Mr MS has faced the Court and pleaded guilty to the offence of Dangerous driving causing injury and faces trial on other serious charges. Mr IA awaits a separate trial.
It is clear from the evidence that XGDG did not want to be in the park that evening. He had asked to be picked up by Mr MS and taken home (and was) and then agreed to go with Mr MS to buy some alcohol and other drinks. It was only near the supermarket that they encountered the two females. XGDG said he had not met them before. It may be that the meeting was not a chance encounter, because they knew Mr MS, but there is no evidence either way about that before the Tribunal.
The group of four then went to the park. XGDG’s demeanour at the park bespoke of his reluctance to be in that environment, underlined by the fact that he rang his friend Mr IA to come and pick him up and take him home, and went to meet him in order to guide him to the location. On the evidence, he did not engage in drinking alcohol or any other activities directly with the two females except taking Ms KS (who was sitting at the time in the van, smoking) with him when he went to meet Mr IA and then bringing her back to the park, with Mr IA following.
When Mr MS reversed the van into Ms KS, XGDG guessed that someone had been hit, and guessed that it was Ms KS because he said he heard Ms SF screaming. At this time he was sitting in the sedan with Mr IA at the wheel, running the engine. He rang Mr MS and told him that he had hit the older female and that he should return, and Mr MS said he would. Then Mr IA reversed the sedan, turned and drove off from the park.
There is an allegation that the sedan also hit Ms KS by driving over her prone body. However, this is not for the Tribunal to speculate upon. Champion J said, at paragraph [25] of Exhibit A4 …the evidence on this issue was left unclear… The circumstances surrounding this will, as mentioned above, be tested when Mr IA comes before the Courts.
XGDG says he then asked the driver Mr IA to stop the sedan and he again rang Mr MS and told him to call the police. His evidence was that Mr MS said he was indeed talking to the police and XGDG said he could hear them in the background.
The Tribunal therefore concludes that it is reasonable that XGDG, that evening, considered that Mr MS had made contact with the police about the incident. Even the next day, when XGDG rang from work and Mr MS told him that he had spoken to the police and it was all sorted, although XGDG was frank enough to admit he thought Mr MS was lying to him, what he was actually lying about is not clear.
In a written statement (GD24, p 147), XGDG stated:
I didn’t call the police and I don’t know who did. I think it was probably one of the neighbors [sic]. I panicked at the time. I didn’t want to be in trouble as I had not done anything wrong. I didn’t know the women and I didn’t really know [Mr MS] that well – we were not close friends. After being arrested falsely in Sri Lanka, I was worried and stressed that the same thing would happen again. I regret not calling the police. If I had my time again, I would have called the police and got help for the lady. I was also worried that the police would not understand me because my English is not good.
The Respondent submitted that XGDG should have done more, and Mr Hughan for the Applicant conceded that maybe was the case. The Tribunal notes that all the criminal charges against XGDG were withdrawn.
Did the Applicant have any duty to assist?
In Victoria there is no common law positive duty to rescue another person, nor is it a statutory criminal offence. This may be contrasted with the Northern Territory. Section 155 of the Criminal Code Act (NT) establishes an offence for a person who fails to provide rescue, resuscitation, medical treatment, first aid or succour to a person urgently in need of it and whose life may be in danger. However, as Kearney J stated in Salmon vChute & Anor [1994] NTSC 21, this is a “novel” provision. His Honour pointed out that such an offence does not exist elsewhere in Australia or in other common law countries. The Northern Territory law is cited here to make the point that it appears to be unique, certainly in the Australian jurisdictions.
The case law in this area generally focusses on what duty of care is owed by medical practitioners, or other persons who may be in a category of having special skills or knowledge and therefore potentially a special obligation to assist. Lowns & Anor v Woods & Ors (1996) Aust. Torts Reports 81-376, was a NSW Court of Appeal judgment relating to whether a duty was owed by a doctor to assist. The Tribunal quotes these passages from that judgment cautiously because the Court was considering the duty of care of a medical practitioner, a person with special skills.
Mahoney JA said, at [13]:
Assuming the facts to be as found against him, the doctor may have had a moral obligation. Any decent person would help a child in trouble if he could: at least, if special cases be put aside. It may be that charity required that he go.
But moral obligations are not legal obligations. The two must not be confused.
And, at [14]:
…NO LEGAL OBLIGATION NOW EXISTS:
This is not in doubt. The learned judge [at first instance], in my opinion, correctly said: “In general the common law does not impose a duty to assist a person in peril even where it is foreseeable that the consequence of a failure to assist will be in the injury or death of the person imperilled.”
This last point made by the Full Court is apt in terms of XGDG.
Ugar Nedim in the 12 April 2015 article “Is it a Crime Not to Help Someone in Danger?”[1] points out that there may be limited circumstances where a person can be liable owing to some pre-existing connexion such as if the person themselves caused the danger or injury; or if a person has a duty of care because of the person’s position in relation to the person in danger (e.g. a doctor, teacher, lawyer); or if a person created a duty of care through the person’s actions at the time the person was in danger.
[1] Ugar Nedim ‘Is It a Crime Not to Help Someone in Danger?”; 12 April 2015; sydneycriminallawyers.com.au (accessed 22 October 2018).
These are useful tests by which to assess the circumstances surrounding XGDG’s failure to act on that day and whether that casts a shadow on his character. XGDG did not cause the injury to Ms KS. He had only met Ms KS an hour or so before and had not even had much of a conversation with her, because of the language barrier. XGDG did not have special knowledge or skills that may have created a duty to assist. He had not acted so as to create a duty of care to her that day. XGDG had, in the Tribunal’s view, taken actions that a reasonable member of the community would take: he had twice contacted the driver of the van urging him to (a) return to the scene and then (b) contact police. Importantly, XGDG believed that the police had been contacted. It is also relevant that he was at some disadvantage because he was only visiting Melbourne and did not have his own car, and was being driven by Mr IA.
The Tribunal notes that Victoria Police had the option, if they decided that XGDG’s actions satisfied the ingredients for charging him with a different offence, to have substituted the withdrawn charges with that difference offence, but they did not do so.
The aftermath of the 25 October 2016 incident

In terms of the Respondent’s suggestion that XGDG somehow ‘fled’ back to South Australia, the evidence before the Tribunal does not support such a contention. XGDG had worked for a number of days that week in his ‘probationary’ job at the tile shop and worked half of the day on 26 October 2016 when he was paid what he was owed for the week. These funds enabled him to purchase his plane ticket home.
XGDG had a number of planned appointments in Adelaide in the ensuing days. Mr Kyranis said that while the evidence of the driving test was not disputed, there was no evidence before the Tribunal that it had been pre-booked. Section 33(c) of the AAT Act empowers the Tribunal to inform itself on any matter as it sees fit. The Tribunal has ascertained from the South Australian Government website that a person seeking to undertake a hazard perception test must make an appointment first; they cannot turn up to sit the test on the day.[2]
[2] Government of South Australia, Department of Planning, Transport and Infrastructure, The Hazard Perception Test < (accessed 22 October 2018).
XGDG said in evidence, and it was not contradicted by the Respondent, that when he was contacted by his friend back in Adelaide on 20 November 2016 and told South Australian Police were at his house asking to see him, he immediately returned home. It was also his evidence, again not contradicted by the Respondent, that he was open and frank at his first interview at the Port Adelaide Police Station about who was involved, and subsequently in Victoria. Relevantly, Magistrate Zebrowski assessed that XGDG was suitable to be bailed on his own undertaking on 11 January 2017 (GD19, p 124).
It is significant that XGDG gave evidence for the Crown in the committal proceedings against Mr MS, and has indicated his availability to be a prosecution witness in the forthcoming trials of Mr MS and Mr IA. Mr Hughan submitted that this was a point significantly supportive of an assessment of good character. The Tribunal notes that it is an expectation that any person who is summonsed to give evidence has a general obligation to respond to the summons, however the conduct of XGDG in this respect is certainly consistent with good conduct.
Good character and the character test
In Godley II, the Full Court held that Lee J’s consideration of the character test was [at 34] correct and constitutes a valuable guide for decision-makers. In Godley I at [51] His Honour said:
The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character, see Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-2; 139 ALR 84 at 94.
Godley II affirmed the finding of the judge at first instance that if the Minister (or the decision-maker, standing in the Minister’s shoes) is unsure whether a person is or is not of good character, and is unable to reach a positive decision that the person is not of good character and declines to do so, then the person will have passed the character test.
In terms of section 501(6)(d)(i) of the Act relied upon by the delegate, the Tribunal must consider the degree of risk that XGDG would, if allowed to stay in Australia, engage in criminal conduct. There is no evidence before the Tribunal that XGDG has engaged in criminal conduct in Australia. The entering of serious charges against him, where those charges were all withdrawn and no substituted charges brought, reverts XGDG to the status of a person who has not engaged in criminal conduct.
Mathews J, sitting as a Deputy President of the Tribunal, stated in Lam and Minister for Immigration [1999] AATA 56, at [51]:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
In this case, there is no evidence that XGDG has shown disregard for the law. He therefore can be placed in the category of members of the Australian community who have never offended. The Tribunal consequently concludes, in this circumstance, that the degree of risk that XGDG would engage in criminal conduct in Australia is remote, or fanciful. The Tribunal does not accept the Respondent’s submission that the mere fact XGDG was proximate to the commission of a crime committed by someone else imbues in him some ‘risk’ of future offending. The Tribunal therefore finds that section 501(6)(d)(i) of the Act is not engaged in this review.
The Respondent submitted that, in the alternative, the Tribunal may consider that section 501(6)(ii) of the Act was relevant to the assessment of XGDG in regard to passing the character test. Parties both agreed in submissions to the Tribunal that this part of the section should be read conjunctively, in that a decision-maker must have regard to the person’s past and present general conduct.
In Godley I at [70] the Court considered the failure of Mr Godley to disclose some historical traffic offences, and found that there should be some statement of the propensity of a person to engage in day to day conduct that was morally bankrupt and not the exposure of mere weaknesses or blemishes in character from time to time.
It may be, as Mr Hughan conceded, that XGDG should have done more in the aftermath of the van driven by Mr MS striking Ms KS. The Tribunal notes that XGDG said he was scared, as was the driver of the car, Mr IA. This may be something of weakness or a blemish, to borrow the words of Lee J, but the language difficulties must be taken into account, as must the genuine belief of XGDG that day that Mr MS had made contact with the police (even if he had some doubts the following day about what Mr MS was then telling him in relation to the nature of that contact). XGDG gave evidence that although he surmised that Ms KS had been hit by the van, he did not know the extent of her injuries until he was told by a friend of Mr MS much later.
The Tribunal cannot be positively satisfied that, taking XGDG’s conduct as a whole, he has shown conduct that is ‘morally bankrupt.’ In Re:Zheng and Minister for Immigration and Citizenship [2011] AATA 304 Deputy President Forgie considered an assessment of a person’s character under the Australian Citizenship Act 2004. There is danger in conflating the requirements of that Act with the Migration Act, because they involve different assessments, but a general principle espoused by the Deputy President is relevant to this review: that assessing a person’s character is measured in part by a person says, in part by what a person does, and in part by what a person is heard to say and seen to do.
Objectively, the most that can be said critically of XGDG’s conduct on that day is that he ‘could have done more’. However, XGDG was not responsible for the awful injuries caused to Ms KS. That person has been rightly held to account by the due process of the justice system. XGDG did not fail to act or show callous disregard for the victim, or even indifference; it was not contested that he rang Mr MS twice. XGDG believed that the police had been made aware, by the principal actor in the matter, what had occurred. If one were to conclude that, all other things being equal, XGDG should have done more that day, this must be balanced by Lee J’s observation at paragraph [76] in Godley I, more than a snapshot of the applicant’s activities would be required to ground a determination that he is not a person of good character.
His Honour also said, at [56]:
Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
This passage is reproduced in Annex A, Section 2 paragraph 5.4 of the Direction.
In terms of the conjunctive architecture of section 501(6)(c)(ii) of the Act, there was no evidence before the Tribunal of ‘present’ general conduct by XGDG which would engage that section. The Tribunal had before it (GD13) various reports of XGDG’s conduct in immigration detention, none of which in the Tribunal’s view pointed to him being of bad conduct. Ms Dianne Reynolds, who is a volunteer visitor to persons in immigration detention, provided a testimonial dated 19 June 2018 (GD25, p 173) which relevantly stated:
I am aware of the offences with which [XGDG] was charged and I am aware that these charges were withdrawn. I have cited [sic] the document myself. Yet he remains in detention some 18 months later. I believe [XGDG] is of good character and should be allowed to remain in Australia. I can honestly say that I have never met a more kind, considerate or gentleman – he interacts well with other detainees and those of us who visit. I have observed his demeanour over the past 6 months and I have never seen him angry or depressed. He is nothing but happy – ‘ to be alive and safe’, as he says (after witnessing the death of parents and a sibling in Sri Lanka. This is my thinking.
Conclusion
The Tribunal finds that, in the absence of any criminal conduct or relevant past and present general conduct, there is no evidence before it that would reasonably satisfy it that XGDG fails the character test. There is also no demonstrated continuing general conduct that shows a lack of enduring moral quality.
The Respondent correctly submitted that the Tribunal is not limited to the specific subsection in section 501 that the delegate decided XGDG did not meet in undertaking this review, and so, for completeness, the Tribunal finds that there are no other provisions in section 501(6) of the Act that XGDG does not satisfy. Therefore, the discretion provided to the Minister by the Parliament in section 501(1) is not enlivened. It logically follows that the correct and preferable decision is that the decision under review should be set aside.
Although having made this finding it is not necessary to go on to consider the relevant specific considerations in the Direction, the Tribunal notes that the Respondent accepted that XGDG is owed protection in accordance with Australia’s international obligations under the 1951 Convention relating to the Status of Refugees, which is relevant to the class of his visa.
DECISION
The Tribunal decides to: (1) Set aside the decision of the delegate dated 6 August 2018; and (2) remit the matter to the Respondent with a direction that the Applicant’s application for a Safe Haven Enterprise (Class XE) visa not be refused under section 501 of the Migration Act 1958.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Date(s) of hearing: 17 - 18 October 2018

Counsel for the Applicant: Mr Greg Hughan

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: Mr Jake Kyranis

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 5927

26 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction

Date(s) of hearing:	17 - 18 October 2018
Counsel for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Mr Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore