XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 755

XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 755 (13 April 2023)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/0394

General Division )
Re: XRGY
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION

TRIBUNAL: Deputy President S Boyle

DATE: 6 April 2023

PLACE:
DECISION:

Perth

The decision of the delegate of the Respondent dated 16 January 2023 to refuse to grant the Applicant a Protection (Class XA) visa is set side and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Migration Act 1958 (Cth).

Written reasons for this decision will be provided within a reasonable time.

…………[Sgd]…………………..
Deputy President
Division:GENERAL DIVISION
File Number(s):      2023/0394
Re:XRGY
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Deputy President Boyle
Date:13 April 2023
Place:Perth

DECISION
The decision of the delegate of the Respondent dated 16 January 2023 to refuse to grant the Applicant a Protection (Class XA) visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Migration Act 1958 (Cth).
.......................Sgd............................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501(1) of the Migration Act 1958 – decision of a delegate of the Minister to refuse to grant the Applicant a Protection (Class XA) visa – whether the Applicant passes the character test under s 501(6)(c) – Ministerial Direction 99 – Application of character test – Applicant covered by previous protection finding – Applicant found not to pass the character test - whether Tribunal should exercise discretion in s 501(1) to refuse to grant the Applicant the visa – ASIO Adverse Security Assessment – Applicant reasonably suspected of being involved in people smuggling – Applicant in immigration detention for 10 years –- indefinite detention – decision set aide and substituted.
LEGISLATION
Australian Security Intelligence Organisation Act 1979 – s 4
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) – ss 36(2)(a) and (aa), 48A, 48B, 116, 197C, 197C(1), 197C(3), 197C(3)(c), 198, 499(1), 499(2A), 501CA, 501E, 500(1)(b), 501, 501(1), 501(6), 501(6)(c)
Migration Regulations 1994 (Cth) – reg 2.21AA
CASES
ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352
Australian Postal Corporation v D’Rozario [2014] FCAFC 89
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 118
Carter and Australian Securities and Investments Commission [2020] AATA 809
Chiagozie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 139
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
CPCF v Minister for Immigration and Border Protection 255 CLR 514
DFE16 v Minister for Home Affairs [2021] FCA 1151
Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1026
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Gill v Minister for Immigration and Border [2017] FCAFC 51
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Johnson and Commissioner of Patents [2020] AATA 3983
Khalil and Minister for Home Affairs [2019] FCAFC 151
Maryvan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2502
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10
Minister for Home Affairs v HSKJ ([2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration and Ethnic Affairs v Wendy Susan Baker (NG 604 of 1996)
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39
Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Plaintiff S321/2019 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 24
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243
Taulahi v Minister for Immigration and Border Protection (2018) 357 ALR 467
WASB v Minister for Immigration and Citizenship [2013] FCA 1016
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440
YKWD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 164
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(3), 5.2(4), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Deputy President Boyle
13 April 2023
The decision in this matter was made and provided to the parties on 6 April 2023 with a note that written reasons would be provided within a reasonable time. These are those reasons.[1]
THE APPLICATION
[1] See Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].

The Applicant seeks review of a decision of a delegate of the Respondent (Minister) dated 16 January 2023 to refuse to grant him a Protection (Class XA) visa. The delegate found that the Applicant did not pass the character test and exercised the discretion under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the visa.
The delegate found that the Applicant did not pass the character test under s 501(6)(c) of the Act.
This application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Act.
THE ISSUES FOR DETERMINATION
The issues for the Tribunal to determine are whether the Applicant passes the character test as defined in s 501(6) of the Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
BACKGROUND
The following facts are taken from the Applicant’s statutory declaration dated 24 February 2023 and the Minister’s statement of facts, issues and contentions dated 14 March 2023 (Minister’s SFIC).
The Applicant is a 35-year-old national of Afghanistan. His ethnicity is Hazara and he is a Shia Muslim.
The Applicant’s mother fled from Afghanistan to Pakistan with the Applicant and her two other children when the Applicant was four or five years old. The Applicant’s father had disappeared in the war in Afghanistan prior to the Applicant’s mother leaving Afghanistan.
The Applicant attended school in Quetta Pakistan up to year four.
In August 2007, the Applicant married an Australian citizen in Pakistan in a marriage arranged by his brother who was living in Sydney and knew the bride’s family.
The Applicant’s wife, as sponsor, obtained a Provisional Partner (subclass 309) visa for the Applicant.
In November 2008 the Applicant arrived in Australia. He was at that time 21 years old.
On 5 December 2011, the Australian Border Force (ABF) commenced Operation Kitefin, an investigation into alleged people smuggling operations. The Applicant was investigated by the Australian Federal Police (AFP) during the course of this operation.
On 11 October 2012, the Applicant attended an interview with the Australian Security Intelligence Organisation (ASIO), during which he was questioned about his involvement in people smuggling ventures.
On 23 October 2012, the AFP stated that it considered that any case against the Applicant for people smuggling was unlikely to proceed due to “lack of evidence”.
On 6 June 2013, ASIO issued an adverse security assessment (ASA) in respect of the Applicant. ASIO assessed that the Applicant was directly or indirectly a risk to security, within the meaning of “security” in s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). The ASA was based on ASIO’s assessment that the Applicant:
(a)had been involved in people smuggling targeting Australia (including facilitating and providing support for people smuggling activities);
(b)maintained the capability to participate in people smuggling activities, including sourcing passengers for passage on irregular maritime ventures;
(c)associated with individuals involved in people smuggling; and
(d)would continue to engage in people smuggling activities if allowed to continue to reside in Australia.
(Full Court of the Federal Court of Australia judgment in [omitted];[2] Unclassified Reasons for ASA issued by ASIO[3]).
[2] The case name and citation have been omitted by reason of s 501K(2) of the Act which prohibits publication of information which may identify a person who has applied for a protection visa. The Applicant is such a person.
[3] R1/150.
On 19 June 2013, as a result of the ASA, the Applicant’s Provisional Partner visa was cancelled under s 116 of the Act. The Applicant was taken into immigration detention where he has remained.
On 25 June 2013, the Applicant’s Partner (Migrant) (subclass 100) visa (Partner visa) was refused as he did not hold a Provisional Partner visa at the time of the decision. The Applicant applied to the Migration Review Tribunal (MRT) for the review of the refusal of his Partner visa application. On 26 August 2013, the MRT affirmed the decision to refuse the Applicant’s application for a Partner visa.
On 1 July 2013, the Applicant lodged a Bridging visa E (BVE) application, which was refused on 26 September 2013 under s 501 of the Act.
On 10 October 2013, the Applicant sought judicial review of the ASA in the High Court of Australia. On 21 November 2013, the High Court remitted the part of the matter that related to the decision to refuse the grant of a BVE to the Federal Court of Australia.
On 8 September 2014, the Full Court of the Federal Court of Australia dismissed the matter.[4]
[4] [omitted]; see footnote 2.
On 15 September 2014, the Applicant made an application for special leave to appeal to the High Court from a judgment of the Full Court of the Federal Court. On 13 February 2015, the High Court refused the special leave application.[5]
[5] [omitted]; see footnote 2.
On 28 April 2015, the Applicant lodged a subclass 866 Protection Visa application.
The Applicant and his wife divorced in August 2015.
On 1 June 2016, the Protection Visa application was refused on the basis that the Applicant was found not to engage Australia's protection obligations.
On 27 June 2016, the Applicant made an application to the Tribunal for review of the decision to refuse the application for a Protection Visa. On 22 September 2016, the Tribunal affirmed the decision to refuse the application for a Protection Visa.
On 27 October 2016, the Applicant applied to the Federal Circuit Court of Australia (as it then was) for review of the Tribunal’s decision to affirm the decision to refuse the application for a Protection Visa. On 10 March 2017 the Federal Circuit Court dismissed the application for review.
On 27 March 2017, the Applicant lodged an appeal against the Federal Circuit Court’s decision in the Full Court of the Federal Court of Australia which dismissed the appeal on 16 October 2018.
On 14 November 2019, the Applicant filed an application in the High Court of Australia for a constitutional or other writ seeking relief in relation to his detention. That application was dismissed on 10 March 2020.[6]
[6] Plaintiff S321/2019 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 24.
On 8 May 2020, the Minister lifted the bar in s 48A of the Act and invited the Applicant to make a further application for a Protection Visa which the Applicant did on 13 May 2020.
On 25 May 2021, the Applicant filed an application in the Federal Court of Australia claiming unreasonable delay in processing the application for a Protection Visa. That application to the Federal Court of Australia was dismissed on 24 September 2021.[7]
[7] DFE16 v Minister for Home Affairs [2021] FCA 1151.
On 26 May 2021, ASIO issued a Qualified Security Assessment (QSA) in relation to the Applicant. The QSA superseded the ASA. An officer in the Department’s Security Assessment Liaison and Analysis area made the following observations on the QSA:[8]
ASIO assesses [the Applicant] is not directly or indirectly a risk to security (within the meaning of s4 of the ASIO Act) and that it would be consistent with the requirements of security for [the Applicant] to hold a Protection (XA866) subclass visa.
[8] R1/209.
On 19 October 2021, a Protection finding was made that the Applicant met the requirements of ss 36(2)(a) and (aa) of the Act.[9]
[9] R1/337.
On 28 March 2022, the Applicant was issued a Notice of Intention to Consider Refusal (NOICR) pursuant to s 501 of the Act. The NOICR stated that the Department of Home Affairs held information which suggested that the Applicant may not pass the character test by virtue of s 501(6)(c)(ii) of the Act and invited the Applicant to comment and respond.[10]
[10] R1/248-254.
On 20 April 2022, the Applicant’s representative responded to the NOICR.[11]
[11] R1/255-325.
By letter dated 26 April 2022, the Department requested further information from the Applicant.[12] The Applicant’s representative responded on 2 May 2022.[13]
[12] R1/243-5.
[13] R1/246-7.
On 16 January 2023, a delegate of the Minister decided to refuse to grant the Applicant a Protection (Class XA) visa (see [1] above).
THE HEARING AND THE EVIDENCE
The application was heard on 30 and 31 March 2023. The Applicant was represented by Ms A Battisson and the Minister was represented by Mr B Kaplan. Ms Battisson appeared pro bono. I thank Ms Battisson and those instructing her for representing the Applicant. The Applicant was the only witness to give evidence at the hearing.
The following documents were admitted into evidence at the hearing:
a)Statutory Declaration and annexures of Stephen Blanks declared 23 February 2023 (Exhibit A1);
b)Statutory Declaration and annexures of Shane Eric John Prince declared 13 March 2023 (Exhibit A2);
c)Statement of Susan Edwards dated 24 February 2023 (Exhibit A3);
d)Statement of Christine Burke dated 25 February 2023 (Exhibit A4);
e)Statement of Christine Bourke dated 28 February 2023 (Exhibit A5);
f)Statement of Applicant’s brother-in law dated 23 February 2023 (Exhibit A6);
g)Statement of Steffi Leedham dated 26 February 2023 (Exhibit A7);
h)Statement of Applicant’s brother dated 2 March 2023 (Exhibit A8);
i)Statement of Cheynee Ray Burke Wainwright dated 27 February 2023 (Exhibit A9);
j)Statement of Applicant’s former wife dated 23 February 2023 (Exhibit A10);
k)Email from Mr Blanks to Ms Battisson dated 1 March 2023 (Exhibit A11);
l)Statement of Sigrid De Silva dated 8 March 2023 (Exhibit A12);
m)Applicants Statutory Declaration declared 26 March 2023 and attached photographs (Exhibit A13);
n)Applicant's Statutory Declaration declared 24 February 2023 with annexures (Exhibit A14);
o)Respondent’s G-Documents filed on 10 February 2023 (Exhibit R1);
p)Respondent’s Supplementary Bundle filed on 23 March 2023 (Exhibit R2);
q)Client Incident Report of 13 October 2022 and 21 February 2023 (Exhibit R3);
r)Letter from Brett Duthie, Associate General Counsel dated 24 March 2023 (Exhibit R4); and
s)IHMS letter to the Applicant dated 27 January 2020 (Exhibit R5).
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act is as follows:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character;
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
On 23 January 2023, the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides that:
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under s 501 of the Act. These principles are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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 measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the visa should be refused.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 99 which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)Legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact on Australian business interests
CONSIDERATION
Does the Applicant pass the character test?
Annex A of Direction 99 contains an overview of and guidance on how the character test is to be applied. Relevant to the present case, para 5 of Section 2 of Annex A provides as follows:
5.Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))
(1)A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
(2)The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3)In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person's character.
a)In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] [sic]'the words "of good character" mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day (sic) 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.'[14]
(4)In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of 'good character'. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
a)In Godley, Lee J went on to say 'For a finding to be made under section 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term 'present criminal conduct' is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character'.
'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.
(Original emphasis.)
[14] The passage quoted appears at paragraph [51] not [34].
Paragraphs 5.1 and 5.2 of Section 2 of Annex A are as follows:
5.1Past and present criminal conduct
(1)In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
a)the nature and severity of the criminal conduct;
b)the frequency of the person's offending and whether there is any trend of increasing seriousness;
c)the cumulative effect of repeated offending;
d)any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges' comments, parole reports and similar authoritative documents; and
e)the conduct of the person since their most recent offence, including:
i.      the length of time since the person last engaged in criminal conduct;
ii.     any evidence of recidivism or continuing association with criminals;
iii.    any pattern of similar criminal conduct;
iv.    any pattern of continued or blatant disregard or contempt for the law; and
v.     any conduct which may indicate character reform.
5.2      Past and present general conduct
(1)The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence.
a)in considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
(2)The following factors may also be considered in determining whether a person is not of good character:
a)whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
i.      involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
ii.     a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country; or
iii.    involvement in war crimes or crimes against humanity;
b)whether the person has been removed or deported from Australia or another country and the circumstances that led to the removal/deportation; or
c)whether the person has been:
i.      dishonourably discharged; or
ii.     discharged prematurely;
from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct that, in Australia would be regarded as serious.
(3)Where a person is in Australia and charges have been brought against that person in a jurisdiction other than an Australian jurisdiction, and those charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of its impact on the person's overall character.
(Original emphasis.)
The parties’ contentions – character test
The Applicant
The Applicant’s Statement of Facts, Issue and Contentions (SFIC) made the following contentions:
(a)The unclassified summary of the ASA contains no evidence, merely ASIO’s assessment.
(b)The unclassified ASA summary references events on 6 June 2013 and 11 October 2012. Accordingly, there is no information, evidence or analysis in the unclassified summary which is current.
(c)While the open evidence of the Director-General of Intelligence in[15] referred to the Applicant being a key member of an identified maritime people smuggling syndicate, the Applicant was not called to give evidence in the criminal trial of the syndicate’s leader. Accordingly, the assertion that the Applicant was a key member of the syndicate is questionable.
[15] [omitted]; see footnote 2.
(d)Similarly, no reference was made in the Supreme Court of Western Australia judgement in the appeal on the severity of sentence handed to the maritime people smuggling syndicate leader.
(e)The Applicant maintains, and has consistently maintained, that he has never had any involvement in people smuggling.
(f)On 26 May 2021, ASIO issued the QSA. It can be reasonably assumed that ASIO examined all available evidence and issued the QSA, which is no barrier to a visa grant.
(g)The Government has repeatedly stated that it has broken the business model of people smugglers. Accordingly, there is little basis for the Department to reason that the Applicant will be able to facilitate people smuggling in the future.
(h)The Applicant’s history does not indicate that the Applicant is not of good character. The Applicant disputes the accuracy of the Client Incidents Report.[16] The authors of those reports have not been produced and the Applicant has not been charged with any offence for the incidents described in the report.
(i)The report must also be seen in light of the Applicant having been in Immigration Detention for the six-year period to which the report relates. During that period, three critical incidents, 15 major incidents and 68 minor incidents have been recorded. This is a very small number of recorded incidents for a person facing indefinite detention in an immigration detention facility. The Applicant refers to information produced by the Department under the Freedom of Information Act 1982 (Cth) relating to the number of assaults reported in immigration detention centres.
(j)No incidents have been recorded for a period of over three and a half years.
(k)The Applicant denies the incidents of alleged sexual assault of another detainee and slapping of a child. These incidents, in any event, occurred approximately seven years ago. In relation to the claimed common assault, no conviction was recorded and the incident occurred approximately five years ago.
(l)The 68 minor incidents in the report can largely be categorised as relating to possession of contraband (mainly telephones which detainees are now allowed to have following the decision in ARJ17 v Minister for Immigration and Border Protection),[17] being a victim of theft or assault, being a victim of a sporting injury, diverting medication, visitors being refused entry or removed, receiving money from a visitor, throwing water on another detainee, hitting a child and being verbally abusive to staff. None of these incidents is of sufficient gravity to find that the Applicant is not of good character.
(m)The 15 major events which were being the victim of assault, threats of self-harm, refusal of food and fluid, being removed from a pool game and use of force against a visitor were not of sufficient gravity that they could reasonably support a finding that the Applicant is not of good character.
(n)There were three critical events being the victim of sexual assault twice and once allegedly trying to hug and kiss another detainee. These incidents were not of sufficient gravity to find that the Applicant is not of good character.
(o)In the absence of a criminal conviction the decision-maker should rarely find that the conduct which would constitute an offence has occurred (Citing Minister for Immigration and Multicultural and Indigenous Affairs v Godley[18] at [35]; Minister for Immigration and Ethnic Affairs v Wendy Susan Baker;[19] B. Robertson, Criminal Allegations in Civil Cases, (1991) 107 LQR 194; Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[20]
(p)The task of ASIO is a different task to that of adducing criminal guilt. It is the AFP that is best placed to investigate, charge and refer to the Director of Public Prosecutions cases of people smuggling. In the Applicant’s case, it has not done so.
(q)If the Tribunal were to prefer or put more weight on the ASIO material than the AFP material, such an approach would raise Constitutional separation of power issues. It is not for an executive decision maker or the Tribunal sitting in place of the executive decision maker to determine criminal guilt. That power is reserved for a Chapter 3 court.
[16] R1/ 88-149.
[17] [2018] FCAFC 98.
[18] [2005] FCAFC 10.
[19] NG 604 of 1996.
[20] [2020] FCA 1026.
The Applicant’s SFIC made extensive submissions on specific paragraphs of the delegate’s reasons for the decision of 16 January 2023 to refuse the Applicant’s visa application.[21] The role of the Tribunal in reviewing an administrative decision is to “...do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be”.[22] It is not the Tribunal’s role to review the decision-maker’s reasons for decision to identify error. I have therefore not reproduced those paragraphs of the Applicant’s SFIC in these reasons for decision. Insofar as the Applicant’s comments on the delegate’s reasons for decision can be taken as submissions on the law or fact, I have taken them into consideration.
[21] R1/18-69.
[22] Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521 per Hill J; see also Johnson and Commissioner of Patents [2020] AATA 3983 at [12]-[15].
The Minister
The Minister’s SFIC made the following contentions:
(a)The Applicant’s past general conduct indicates a lack of enduring moral qualities.
(b)The Tribunal should find as a fact that the Applicant engaged in people smuggling activities, as assessed by ASIO as set out in [15] above.
(c)ASIO’s relevant function is to obtain, correlate and evaluate intelligence relevant to security and to counter serious threats to Australia’s border integrity.
(d)In 2012, the Australian National Audit Office conducted an audit into security assessments and found that ASIO follows defined procedures and has quality assurance processes in place.
(e)The Tribunal can be satisfied that the ASA is probative evidence of the Applicant not being of good character. The ASA is, in and of itself, probative evidence that the Applicant’s general conduct indicates that he is not of good character.
(f)The AFP assessment is not inconsistent with, or more reliable than, the ASA. The AFP material indicates that there was insufficient evidence to proceed to prosecute the Applicant in relation to people smuggling. The criminal standard of proof does not apply in administrative proceedings. The Tribunal does not have the information or reasons upon which the AFP reached its conclusion.
(g)Preferring the ASA over the AFP material does not present an issue with the separation of powers as claimed by the Applicant. The Tribunal would not be “determining guilt or innocence and [i]s not otherwise involved in the criminal justice process”.[23] All that the Tribunal would be doing is having regard to material that is plainly relevant to the exercise of its power under s 501 of the Act and is sufficiently probative of the Applicant: (a) having engaged in people smuggling in the past, and (b) (presently) not being of good character.
[23] Citing Taulahi v Minister for Immigration and Border Protection (2018) 357 ALR 467 at [29]. See also Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at [33], [63]; Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565 at [51]-[58] (affirmed on appeal: (2007) 244 ALR 119); Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at [82]-[83], [85]-[86]; SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 at [91]-[94]; MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161 at [51]-[67].
(h)The QSA does not assist the Applicant in relation to demonstrating his past general conduct. Relevantly, the QSA was issued on 26 May 2021. It assessed that the Applicant “is not” a risk to security. This is understandable where the Applicant had been in immigration detention since the ASA was issued. His capacity and ability to continue to engage in the conduct identified in the ASA had been stultified and a period of nine years had elapsed. While the QSA is a more up-to-date assessment of such risk, it does not invalidate or undermine the facts stated or opinions expressed in the ASA.
(i)The impact of people smuggling is significant, not only as a threat to border integrity, but to the individuals involved. So much is apparent from the terms of cl 8.5(2)(e) of Direction 99.
(j)The Tribunal should find that the Applicant engaged in the conduct described in the ASA. That conduct alone is so serious that it is sufficient for the Tribunal to satisfy itself that the Applicant does not pass the character test.
(k)The Applicant’s past general conduct goes beyond his having engaged in people smuggling. Throughout the time that he has been in immigration detention the Applicant has:
(i)committed an assault on 15 March 2017 for which he was convicted;
(ii)acted in an abusive and aggressive manner to persons in immigration detention, particularly women;
(iii)committed assault or was involved in physical altercations; and
(iv)attempted to hug and kiss a woman without her consent.
(l)While these incidents occurred some years ago, the lapse of time does not make them any less significant, particularly as (a) they indicate a trend on the part of the Applicant of abusive or aggressive conduct, and (b) they occurred in a controlled environment.
(m)In relation to present conduct, the Minister accepts that the Applicant has not recently been involved in any incidents in immigration detention. However, the absence of such incidents is tempered by the fact that the Applicant is in a controlled environment which is more conducive to acting in a lawful and respectful manner.
Consideration – Character test

The delegate made the decision that they were not satisfied that the Applicant passed the character test for the purposes of s 501(1) because the delegate found that the Applicant is not a person of good character under s 501(6)(c) of the Act. Given that the role of the Tribunal in a review such as this is to “do over again that which the original decision maker did” (see [54] above), “exercising the same discretions that the original decision maker had”[24], it would be open to me to consider whether the Applicant does not pass the character test under a section other than s 501(6)(c) or for some other reason. However, the Minister has not contended that any provision other than s 501(6)(c) has any application and the parties proceeded on the basis that the only relevant consideration in relation to the character test for the purposes of s 501(1) is whether the Applicant is not of good character by operation of s 501(6)(c) of the Act. I find that, on the basis of the matters raised by the parties and the evidence, the only relevant character test is that in s 501(6)(c) of the Act.
[24] Carter and Australian Securities and Investments Commission [2020] AATA 809 at [51].
The Minister relies on three categories of conduct to contend that the Applicant does not pass the character test under s 501(6)(c) of the Act. They are:[25]
(a)The Applicant’s credit as a witness;
(b)The Applicant’s involvement in people smuggling; and
(c)The Applicant’s conduct in detention.
[25] Transcript/208.
In relation to the Applicant’s credit as a witness, the Minister submitted that the Applicant was non-responsive, evasive and argumentative. Mr Kaplan pointed to the Applicant’s evidence in relation to the claimed sexual assault on him on 12 March 2017. The Applicant was taken to the IHMS clinical record of 14 March 2017 which was attached to the Applicant’s statement dated 24 February 2023[26] which described the claimed assault in the following terms:[27]
…the islander guys who assaulted him tried to undone [sic] his shorts and undies but did not disclose this to anyone as he was embarrassed.
[26] A14/0224.
[27] Transcript/209.
Mr Kaplan asked the Applicant whether that assault was the only assault that occurred on that date. The Applicant confirmed that it was. Mr Kaplan then read to the Applicant paragraph 64 of his statutory declaration of 24 February 2023 which was:
The Second Male then started to try and pull my shorts down. I was fearful I would be sexually assaulted and started to struggle again. The Second Male moved my right hand back to grab hold of my shorts while ‘Kiwi’ was still on top of me. I then felt the Second Male strike me with his right elbow into the back of my right leg around three or four times. I felt an immediate and very sharp pain from this.
It was then put to the Applicant that the first two sentences of the above passage reflected what the Applicant had told the IHMS nurse on 14 March 2017 as recorded in the IHMS records. The Applicant agreed.
Mr Kaplan then took the Applicant to paragraph 65 of his statutory declaration which he read to the Applicant:
The Second Male pulled my shorts partially down, but my underpants were still in place. I felt the fingers of the Second Male tracing around the underpants around my penis and felt him pushing his fingers against my anus causing me pain.
It was put to the Applicant that he had embellished the claimed assault in his statutory declaration which did not reflect what he had told the nurse on 14 March 2017. The Applicant explained the discrepancy in the descriptions as being a result of him being embarrassed or too shy to tell the female nurse the detail of the assault.[28] It was then pointed out to the Applicant that the lawyer to whom he provided instructions for the preparation of the statutory declaration was a female. The Applicant’s response was that it was a matter of trust.[29]
[28] Transcript/134.
[29] Transcript/135.
Mr Kaplan also referred to the significant difference in the Applicant’s account of the incident on 15 March 2017 which resulted in the Applicant’s conviction on 7 February 2018 for “common assault, beat and ill-treat” for which the Applicant received a two-year good behaviour recognizance.[30] The Applicant’s version of the events that resulted in his conviction on his plea of guilty, are markedly different to the AFP Statement of Facts presented to the court and upon which the conviction and sentence were based. The references to the incident are in the Applicant’s statutory declaration dated 24 February 2023 at [73]-[75] and [106]. At [73] that Applicant quotes from a psychiatrist’s note in his medical records added on the morning of 15 March 2017 describing a claimed attack on the Applicant three days earlier which left the Applicant “tired and dizzy” and feeling “daunted and exhausted”. The psychiatrist’s assessment was that the Applicant was “… emotionally and physically traumatized by the incident”.
[30] R1/78.
At [74] of his statutory declaration the Applicant said that at the time of the 15 March 2017 incident, he was terrified for his safety, was traumatised and had been shaking every time he thought of the assault on 12 March 2017.
At [75] the Applicant said that he could not “remember much about the incident on 15 March 2017. It happened so quickly, and I was still traumatised from being attacked three days earlier”. He goes on in that paragraph to say “I acknowledge that it is unacceptable to attack other people in any circumstances. This was a low moment for me and I’m ashamed I behaved like this.”
At [106] of that statutory declaration the Applicant stated that the incident of 15 March 2017 “..is dealt with above”.
The Applicant’s statutory declaration dated 26 March 2023[31] dealt with a number of incidents in relation to which documents were produced in the Minister’s Supplementary Bundle of documents which were filed on 23 March 2023.[32] The Supplementary Bundle included reports and statements relating to the incident on 15 March 2017 by Detainee Service Officer (DSO) RS[33] and DSO SR[34]. The Supplementary Bundle also included a Department Incident Detail Report[35] which also contained a summary of the incident on 15 March 2017 which was consistent with the reports of DSO SR and DSO RS. The Applicant’s statutory declaration of 26 March 2023 did not refer to the documents in the Supplementary Bundle relating to the 15 March 2017 incident or otherwise to that incident.
[31] A13.
[32] R2.
[33] R2, ST14/35-37.
[34] R2, ST15/38-40.
[35] R2, ST16/41-42.
The Applicant’s evidence at the hearing in relation to the 15 March 2017 incident was that he had not punched the other detainee, detainee F. He said that he had only thrown shoes at detainee F and that he could not fight detainee F as the Applicant is “not a fighter”[36] and that he “can never be violent”.[37]
[36] Transcript/69.
[37] Transcript/73.
The Applicant was taken to the AFP Statement of Facts relating to the 15 March 2017 incident[38] which was presented to the Local Court at the time of the Applicant’s plea and sentencing on 7 February 2018 (see [63] above):[39]
[38] R1/81-85.
[39] Transcript/70-71.
MR KAPLAN: And in paragraph 29 it says:
At this time, XRGY…
- that’s you - - -
…and Aghar had also joined the fight. XRGY ran straight to [detainee F] and threw a right-handed punch at [detainee F], striking him on the right cheekbone.
…
MR KAPLAN: It wasn’t just you throwing a thong. It was you punching someone in the face, and the reason why you did that was because of what you say occurred three days earlier, correct? It was payback.
APPLICANT: No, I did not want to be in that compound. But it happened because they mixed up. They mixed all of us together. The Serco mixed all. I told them, I write to them, “Please don’t put me with them in the same compound, in the same visit.”
…
MR KAPLAN: It happened because it was payback for [detainee F]
APPLICANT: No, no, no, no. I could not get there. He - he’d actually sexually assaulted me, I could do nothing.
On the second day of the hearing the Applicant was again cross-examined on the incident on 15 March 2017. The Applicant was taken to paragraph 22 of the AFP Statement of Facts as follows:[40]
[40] Transcript/142-147.
MR KAPLAN: Now, in paragraph 22 you’ll see that the circumstances of the offence are described, and it says that:
DSO [R]’s heard XRGY
I suggest that that’s you.
APPLICANT:   Yes.
MR KAPLAN:
… speak …it says…in the Hindi language, using the words, (Language other than English spoken), meaning, “That’s him. That’s him.”, in English.
APPLICANT:   Yes.
MR KAPLAN: It then says:
Hadi and Tamour walked up to [detainee F], who was sitting with his two female visitors and an infant child, yelling words to the effect of, “You hit my cousin.”
… So what the AFP statement of facts is saying is that you signalled to your visitors to attack the victim, [detainee F]
…
At a time when he was sitting down with an infant child and two women...
And by pleading guilty to the offence of assault, you, of course, understood that you were accepting the correctness of the facts set out in this document, yes?
APPLICANT:   What is that fact?
MR KAPLAN: That fact is you used the words, “That’s him. That’s him.”, Hadi and Tamour then walked up to [detainee F], who at the time was sitting with his two female visitors and an infant child, yelling words to the effect of, “You hit my cousin.” In other words, you told these people, your visitors at Villawood, to go up to [detained F], “That’s him. That’s him.”, at a time when he was sitting down with a small child, an infant, and two women.
APPLICANT:   No, I don’t speak in Urdu with them.
MR KAPLAN: I see. Well
APPLICANT:   So that’s 100 per cent wrong.
…
MR KAPLAN: I’ll rephrase it. Paragraph 22 is a lie, isn’t it?
APPLICANT:   100 per cent lie, because I don’t say, I don’t talk in Urdu with them, first thing.
…
MR KAPLAN: …Notwithstanding your evidence to the Deputy President that paragraph 22 is a lie, I’m suggesting to you, XRGY, that it’s true, isn’t it, that you signalled to your visitors to approach [detainee F] at the time that he was sitting down with a small child and two women, and by doing that, you had no regard for the safety of the infant and the two women when you signalled to your visitors, correct?
APPLICANT:   No, I did not I did not signal to them. I didn’t even know that [detainee F] was there in the visit.
Later in the cross-examination on this incident, following repeated attempts by Mr Kaplan to ask a particular question, I asked the Applicant some questions:[41]
[41] Transcript/148.
DEPUTY PRESIDENT:         No, listen to the question. I don’t want to hear that story again, which frankly doesn’t make sense. Your story now is there was in fact [detainee F], who according to this, was sitting with two women and a child. Your story now is he attacked your two friends. Is that your story?
APPLICANT:   I saw him punching my friend, yes.
DEPUTY PRESIDENT:        Why would [detainee F] punch your friend?
APPLICANT:   I was far but - because they fight for anything. They had been known for fighting - - -
DEPUTY PRESIDENT:         No, just listen to the question. Where were you seated or standing when you saw [detainee F] hit your friend?
APPLICANT:   I was far. We were inside like a kind of room, and he was outside. I went to smoke, like went to try and have a smoke, and then I saw they had a fight already.
DEPUTY PRESIDENT:         Did you see [detainee F] stand up and approach your friends and hit one of your friends?
APPLICANT:  No, my friend went there to talk to him, but when I got out I saw [detainee F] - -
DEPUTY PRESIDENT:         Okay, so your evidence now is that your friend approached [detainee F]?
APPLICANT:  Yes.
DEPUTY PRESIDENT:         [detainee F] was sitting down with two women and a child, was he?
APPLICANT:  Yes.
DEPUTY PRESIDENT:         Why did your friend approach [detainee F]?
APPLICANT:  I don’t know. I told him, “Why did you go to him?” He said, “I wanted to talk to him.”
DEPUTY PRESIDENT:        How did he know who [detainee F] was?
APPLICANT:  Because when they took me to the visit, I said, “These guys bashed me. This is the guy that had bashed me.”
The above passage is not atypical of the Applicant’s evidence at the hearing. Having initially denied that he had identified detainee F to his visitors as one of the people who he claimed had attacked him, under further cross-examination and questions from me, he conceded that he had identified detainee F to his visitors. At the most generous to the Applicant, it might be argued that he took issue with paragraph 22 of the AFP Statement of Facts because it recorded him identifying detainee F to his visitors in Hindi (his evidence was that he did not speak Urdu which he said is the same as Hindi). His assertion, however, that paragraph 22 of the AFP Statement of Facts was “100% lie” is clearly unsustainable given his concession after further cross-examination that he did in fact identify detainee F to his visitors as one of the people who attacked him days earlier. The critical content of paragraph 22 of the AFP Statement of Facts was obviously, not the language spoken by the Applicant, but the fact that the Applicant had identified detainee F to his visitors. To claim that it was “100% lie” was itself a lie.
It is also significant that the Applicant did not take issue with the AFP Statement of Facts when it was presented to the court at the time of his conviction and sentencing for “common assault, beat and ill-treat” on 7 February 2018. The Applicant was represented by counsel at the sentencing hearing. No objection was raised to the facts as set out by the AFP. At the hearing before me the Applicant, in effect, sought to blame his lawyer representing him at the sentencing. The Applicant’s evidence was:[42]
They gave me advice. They said, “Yes, because we have thrown slippers at officers.” I said, “Okay, that’s fine. If you think - because once you give me instructions,” and he said, “We have to go with these.” I said, “Okay, it’s fine.”
[42] Transcript/154.
I do not accept the Applicant’s above evidence. It is inherently implausible that a legal practitioner representing a person facing a reasonably serious offence would give the advice claimed by the Applicant. The more likely explanation for no issue being taken with the AFP Statement of Facts is that it accurately set out what occurred. As noted earlier, the AFP Statement of Facts is consistent with the contemporaneous reports made by the DSOs who witnessed the incident.[43]
[43] R2/35-40.
The Applicant was cross-examined on a claim made in his statutory declaration dated 24 February 2023 that he had been “bullied and assaulted” by an IHMS nurse at the Yongah Hill Immigration Detention Centre on 15 January 2021. Mr Kaplan read paragraphs 91-94 of the Applicant’s statutory declaration as follows:[44]
On 15 January 2021, I was bullied and assaulted by an IHMS nurse, named [omitted]. I visited Nurse [omitted] to request an appointment with a GP to renew my request for a single room accommodation, where I feel safer than in a room with other men. I was trying to confirm that I would stay in a single room, because many detainees were being brought into the centre, and were being forced to share rooms.
To get an appointment with a GP, we have to see a nurse first. As such, I saw Nurse [omitted]. I asked her for a referral to the GP, so the GP could put in a request to Serco that I needed to stay in a single room. [omitted] refused to refer me to the GP. While trying to convince her to let me see a GP, I said words to the effect of, "I've been sexually assaulted a number of times. I have to be in a single room." [omitted] then said to me words to the effect of, "You are lying. I don't trust you."
[Omitted] then started pushing me out of the room. I tried to ask the other nurse on duty to assist me, but [omitted] kept pushing me out of the nursing station.
This incident should be recorded on CCTV. I have lodged a written complaint and asked for the incident to be investigated. To date, I have not received any communications about this incident.
[44] Transcript/175.
The Applicant was asked whether the above account, including his claim that he had not received any response to his complaint, was accurate. He confirmed that it was and asserted that the nurse in question had been sacked for her misconduct.[45]
[45] Transcript/176.
The Applicant was then handed a copy of a letter from IHMS dated 27 January 2020[46] which responded to the Applicant’s complaint against the nurse. It relevantly stated:
In regards to your allegations that the nurse pushed you and wouldn’t let you speak to another staff member. Please be advised that it would be unprofessional to interrupt a clinical consultation between colleagues for what is (to IHMS) a non-urgent issue that has already been involved.
After review of the CCTV, I can confirm that the nurse placed a hand on you [sic] left shoulder to guide you out of the clinic and away from interrupting two colleagues having a clinical discussion, at no time does the IHMS nurse consider that you were pushed.
If you wish to escalate your complaint you may do so by contacting the Commonwealth Ombudsman. Details of how to make a complaint to the Commonwealth Ombudsman are ahttp://…..
[46] R5, I find that the reference to 2020 was erroneous and was meant to be 2021.
The Applicant conceded that he had received that letter.[47] When it was put to the Applicant that his claim that he had not received a response to his complaint was incorrect, his evidence was that “…I was not provided with CCTV. That’s what I mean” and later that he may have forgotten that he received the letter.
[47] Transcript/177.
Again, I find that the Applicant’s evidence was, at best embellishment, at worst simply false.
The Applicant is not a reliable witness. I agree with the Minister’s characterisation of the Applicant’s evidence as non-responsive, evasive and argumentative. His repeated response when taken to reports of his behaviour by DSOs or complaints made against him by other detainees was that they were all lies and that he has never been violent, has never been disrespectful to women, has never been aggressive or sworn at DSOs and that his behaviour has throughout been “very good”.[48]
[48] Transcript/64, 65, 68. 73 and 103.
The Applicant’s explanation for a female detainee’s complaint that the Applicant and another detainee had sexually harassed and humiliated her in November 2013 was that she was lying. He could not provide any reason why the female detainee would make up such allegations. The Applicant’s evidence was that she must have lied because she had requested that the Applicant be relocated to another compound, which did not occur.[49] I do not accept that contention.
[49] Transcript/80.
Similarly, the Applicant asserted that the DSOs who provided contemporaneous statements relating to an incident, or series of claimed incidents, following a court appearance on 22 May 2014,[50] were “all lies”[51]. The Applicant’s evidence was that the female DSO[52] had pushed him up against a wall in the court precinct and had threatened to “bash him” while in the van transporting the Applicant back to the Immigration Detention Centre. Statutory declarations were provided by the barrister, Mr Prince SC[53] and the lawyer, Mr Blanks[54] who represented the Applicant on that day. Both statutory declarations concentrated on an allegation that one of the Applicant’s legal representatives had “grabbed the CSO and began to abuse the escort staff”.[55] Mr Blanks denied that he had engaged in that conduct and said that he did not observe Mr Prince or the other legal representative of the Applicant present on that day touch the CSOs or behave in an inappropriate way. Similarly, Mr Prince denied any such conduct. Mr Blanks statutory declaration makes no reference to the CSOs pushing the Applicant up against a wall or otherwise behaving inappropriately towards the Applicant.
[50] (R2/12-5).
[51] Transcript/86.
[52] Also referred to as CSO.
[53] A2.
[54] A1.
[55] A1/11.

Mr Blanks annexed two letters to his statutory declaration which he said he wrote to the Building Manager of the Law Courts and to the Department on 26 May 2014. Both letters refer to a “tussle” between the Applicant and his escorts and the letter addressed to the Department made the following comment:
Our client states that he was pushed up against the wall by one of the SERCO guards. This incident was witnessed by a reporter from the Australian Newspaper Nicola Berkovic and me.
That letter also referred to the Applicant having advised Mr Blanks that he had been threatened by the Serco officer while being transported back to the Villawood Immigration Detention Centre.
Like Mr Blanks’ statutory declaration, the statutory declaration of Mr Prince focused mainly on the allegation that one of the Applicant’s legal representatives had grabbed or touched the escort officers. His evidence was that he did not observe any such conduct. His evidence also was that he recalled “some misconduct by guards towards [the Applicant] which I asked my solicitor Mr Blanks to raise with appropriate court officers”. Mr Prince referred to the two letters sent by Mr Blanks referred to in [83] above. Mr Prince’s statutory declaration does not describe the misconduct on the part of the CSOs.
Understandably, the focus of Mr Prince and Mr Blanks was on the allegation potentially made against them that they had touched or grabbed the Serco escort staff. The letters sent by Mr Blanks on 26 May 2014 also provide some contemporaneous record of the Applicant having made the claim that the Serco officers had threatened and mocked him while he was being transported back to Villawood.
Ms Battisson submitted that, based on the statutory declarations of Mr Prince and Mr Blanks, I should not accept the truth of the statements made by the two DSOs. Understandably, the primary purpose of Mr Prince’s and Mr Blanks’ statutory declarations appears to have been to respond to and deny the claim that one of the Applicant’s legal representatives had touched or grabbed an arm of one of the DSOs. Their statutory declarations, however, did not contradict the bulk of the DSOs’ statements. Even if I accept the statements of Mr Blanks and Mr Prince in relation to their conduct and what they observed, I do not accept that that means that I should disregard or disbelieve the evidence of the DSOs relating to the Applicant’s behaviour on that day, which is the relevant consideration for the matters that I have to determine.
In that regard, the descriptions in the statements by the two DSOs of the behaviour of the Applicant on 22 May 2014 are similar to, and consistent with, multiple reports of other incidents by Immigration Detention staff. I do not accept the Applicant’s claim that these reports are all lies and fabricated. In each case when the Applicant was asked to say why the detention staff or other detainees would fabricate such claims, he was unable to provide any coherent reason why those involved would fabricate the reports or complaints.
Overall, I found the Applicant to be an unsatisfactory witness, prone to embellishment, fabrication and unwilling to concede anything that he thought was not in his interest. While it may be that not all of the reports included in the documents lodged by the Minister, including the Client Incident Report,[56] are completely accurate, there is a consistency and a pattern in the Applicant’s behaviour as reported by different detention personnel.
[56] R1/88 and R3.
The second category of conduct relied on by the Minister to establish that the Applicant is not a person of good character is the Applicant’s claimed involvement in people smuggling.
The Applicant has repeatedly denied that he was ever involved in people smuggling. ASIO disagrees. The Truncated Final Appreciation[57] sets out what is disclosable in ASIO’s ASA. The ASA was issued in June 2013 (see [15] above). ASIO assessed the Applicant to be a risk to Australian security because of his involvement in a people smuggling syndicate.
[57] R2, ST18/47-51.
In May 2021 the QSA assessed the Applicant not to be a risk to Australian security (see [31] above). The issue of the QSA in May 2021 cannot be taken as indicating that ASIO considered the ASA, their assessment that the Applicant was involved in people smuggling and that in June 2013 the Applicant posed a risk to Australian security, as being incorrect. All that the issue of the QSA indicated was that in May 2021, ASIO no longer assessed the Applicant to be a risk to security. As the Minister contended, ASIO’s assessment that in May 2021 the Applicant was not a risk to security is understandable given that the Applicant had been in immigration detention for some eight years and his capacity to continue to engage in the conduct identified in the ASA had been stultified.
It is ASIO’s statutory function to assess intelligence and to make assessments of risk to Australia’s security based on that intelligence. I am satisfied that in making the assessment in May 2013 that the Applicant was involved in people smuggling,[58] ASIO was acting on various sources of intelligence which ASIO considered to be reliable, including interviews with the Applicant. In making that observation I also have had the benefit of seeing the unexpurgated version of the Truncated Final Appreciation which was lodged by the Minister pursuant to s 500(6F)(c) of the Act. I have regard to the non-disclosable information contained in that document.[59]
[58] R2/47, see para 4 of Truncated Final Appreciation.
[59] Note - pursuant to s 500(6F)(d) of the Act I am precluded from disclosing the non-disclosable information.
The Applicant, in effect, contended that the absence of the Applicant being convicted of any offence related to people smuggling, or even being charged with an offence related to people smuggling, should cause me to conclude that he was not involved in people smuggling. The Applicant cited [35] of Godley. That paragraph quoted the decision at first instance at [62] in which Lee J observed that “In the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available. (See: Baker at 194)”.[60]
[60] Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at [62] (Godley first instance).
The absence of a criminal conviction, however, does not preclude the Tribunal from finding that a person engaged in conduct which could have founded an offence. In Chiagozie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 139, Collier J summarised the position as follows:
39.As a general proposition, the Tribunal was entitled to make that factual finding notwithstanding the absence of a conviction. In this regard I note Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352, where the High Court observed at [33]:
“More generally, and contrary to the "normal expectation" stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. The decisions of this Court in Attorney-General (Cth) v Alinta Ltd and Albarran v Companies Auditors and Liquidators Disciplinary Board accept so much. There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant's use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.”
(emphasis added, footnotes omitted)
40.In a similar context involving allegations of engaging in criminal activity, in Taulahi Robertson J stated (with North and Besanko JJ concurring) at [26]-[29]:
In my opinion, the Minister was engaged in an evaluative exercise in the course of deciding how to exercise his discretion in s 501(3), having already formed the view that he reasonably suspected that the applicant did not pass the character test and that he was satisfied that the cancellation of the visa was in the national interest.
The Minister’s decision-making was administrative, even if it involved a finding of behaviour which could found criminal proceedings: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 at [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ and [63] per Gageler J. Unlike Today FM, the question of the commission of an offence is not the express statutory subject matter or jurisdictional fact where the issue is the exercise of the s 501(3) discretion.
The Minister took into account the response from the ACIC to the Department of Immigration and Border Protection’s request for information regarding why Ms Mill sought AVOs against the applicant.
Contrary to the submissions of the applicant, that material was plainly relevant to the Minister’s exercise of his discretion. As I have said, the Minister was engaged in an administrative process. He was not determining guilt or innocence and was not otherwise involved in the criminal justice process. It follows that the principle in Woolmington is not presently relevant.
(emphasis added)
41. His Honour went on to observe, at [31] and [34]:
In my opinion, it was open to the Minister to conclude that the events set out in the ACIC’s report had occurred even where there were no criminal charges or criminal convictions. Put differently, there was material before the Minister on which he could base the conclusions that he reached at [45] and the no evidence ground of judicial review has not been made out: see Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [15] per Besanko J, [47]-[48] per Jessup J and [118] per Bromberg J.
...
I accept, of course, that an error in fact-finding may constitute a jurisdictional error: Gill v Minister for Immigration and Border [2017] FCAFC 51; 250 FCR 309, but in the present case I find no error in fact-finding on the part of the Minister has been established.
(emphasis added)
(Original emphasis.)
The decision in Chiagozie and the authorities referred to therein, make it clear that there can be a finding that a person engaged in conduct, including conduct which could constitute an offence, notwithstanding that the person has not been convicted of an offence. Based on the information contained in the Truncated Final Appreciation, in particular the unexpurgated version, I am satisfied that the Applicant was involved to some degree in people smuggling. In so finding I am mindful of para 7(1) of Direction 99 (see [48] above) which provides for evidence from independent and authoritative sources being given appropriate weight. In this case I consider ASIO to be an authoritative source on the matter of the Applicant’s involvement in people smuggling.
The fact that the AFP did not consider there to be sufficient evidence to successfully mount a prosecution against the Applicant, does not alter my finding that the Applicant was, as assessed by ASIO, involved in people smuggling. It is fair to assume that the test that the AFP would have applied on making that assessment was whether there was sufficient admissible evidence to establish beyond reasonable doubt that the Applicant had committed an offence. That is not the standard of proof that applies in the Tribunal.
The third category of conduct relied on by the Minister to establish that the Applicant does not pass the character test under s 501(6)(c) of the Act is the Applicant’s conduct in detention. Many of the incidents relied on by the Minister have already been canvassed above. The Minister’s contention is that the Department’s records, in particular the contemporaneous records made by DSOs should be preferred over the Applicant’s assertion that his behaviour in detention has throughout been “very good” (see [80] above). Mr Kaplan in closing made the following submission:[61]
The notion that each and every person with whom the applicant had interactions over a six year period from 2013 to 2019, which involved misconduct on his part, from the female detainee in November 2013, to the female Serco officers in 2014 and 2015, to the three-year-old child in 2015, and to the detainees in 2016, 2017, 2018, and 2019, lied about his misconduct is, in my respectful submission, inherently implausible.
[61] Transcript/211.
I agree with Mr Kaplan’s submission. For the reasons set out above, I have found the Applicant to be an unreliable witness, a person prone to fabrication and embellishment. I accept that the Applicant has engaged in the conduct indicated in the Department’s and Serco’s records. Looked at individually, with the exception of the incident on 15 March 2017 which resulted in the Applicant’s conviction for “common assault, beat and ill-treat”, the incidents recorded are not particularly serious. Many of the “incidents” were, as the Applicant submitted, of an administrative nature, breaches of detention centre regulations which would not constitute an offence if committed outside the immigration detention environment. Many were also of a type that could reasonably be explained as being the result of the oppressive and unnatural environment in which the Applicant and other detainees find themselves. Rather than being, as is sometimes asserted, a “controlled environment”, conducive to good behaviour, prolonged detention of the type that the Applicant has endured is, in my view, more conducive to errant behaviour.
While much of the Applicant’s reported behaviour could be looked at sympathetically through the prism of prolonged detention, the Applicant did not do himself any favours by his repeated denial of any wrongdoing, his repeated downplaying of his conduct and his claim in just about every instance that he was the victim of fabrication, bullying and prejudice by detention centre staff and/or other detainees and in one case, by the apparent incompetence of his lawyer. While much of the Applicant’s conduct can, if not be excused, at least be seen in light of the hostile and frustrating environment of immigration detention, his just about universal denials, the making of false assertions and the unsatisfactory manner in which he gave evidence cannot be so excused.
Applying the factors identified in para 5 of Section 2 of Annex A to Direction 99, I find that the Applicant’s past criminal conduct does not warrant a finding that the Applicant is not of good character. He has only one relevant conviction, that being the conviction for “common assault, beat and ill-treat” arising out of the 15 March 2017 incident. The sentence imposed, two-year good behaviour recognizance, is indicative of the Court not considered the offence to be particularly serious. I also consider that the circumstances in which the offence occurred significantly mitigate the seriousness of the offence. The offence and the circumstances in which it was committed do not indicate “moral turpitude”[62] and do not indicate “a lack of enduring moral quality”.[63]
[62] Godley first instance at [63].
[63] Godley first instance at [56].
I also find that the Applicant’s criminal conduct, and in that regard I am referring to the Applicant’s criminal record, has not been frequent and there is no trend of increasing seriousness (para 5.1(1)(b)), there is no cumulative effect (para 5.1(1)(c)), there has not been any further convictions and that the only relevant conviction was in relation to an offence committed over six years ago (para 5.1(1)(e)).
In relation to the past and present general conduct (para 5.2), I accept that the incidents recorded in the various reports referred to above did occur. I do not consider that the incidents as recorded are of a nature, frequency or committed in circumstances which indicate that the Applicant lacks the “enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day [sic] activities and in dealing with fellow citizens”[64]. I also note that the Applicant’s recent behaviour as reflected in the reports has been good. However, what is of concern is the Applicant’s continued denial of these incidents, his assertion that the reports have been fabricated and that he is, in effect, the victim of an apparently widespread and long-running conspiracy.
[64] Godley first instance at [51].
What is of concern, and clearly an “indicia as to the … absence of good character”[65] is the Applicant’s involvement in people smuggling. Similarly indicative of an absence of good character is the Applicant’s evidence at the hearing. For the reasons set out above, I have found the Applicant not to be a credible witness, a person prepared to be untruthful under affirmation. I find that to be indicative of a lack of enduring moral qualities reflected in soundness and reliability in moral judgement and indicative of a lack of good character.
[65] Godley first instance at [52].
Considering the factors identified in para 5.2 of Part 2 of Annex A to Direction 99, the Applicant’s involvement in people smuggling, although historical, indicates that the Applicant as a minimum had a contempt or disregard for the law and, given the nature of people smuggling, a disregard for human rights. The Applicant’s continued denial of involvement in people smuggling, indicates that the Applicant still has contempt for the law.
The Applicant’s historical involvement in people smuggling (noting ASIO’s assessment in the QSA that the likelihood of the Applicant again being engaged in people smuggling is very low), his continued denial of such involvement and the unsatisfactory manner in which he gave evidence at the hearing are indicative of the Applicant lacking the enduring moral qualities of a person of good character.
I find that the Applicant does not pass the character test under s501(6)(C) of the Act.
Should the Tribunal exercise the discretion in s 501(1) to refuse to grant the visa?
Paragraphs 8 and 9 of Direction 99 identify the primary considerations and other considerations to which a decision maker is to have regard (see [49] and [50] above).
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … 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.
In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(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.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The parties’ contentions
The Applicant

Direction 99 has specific provisions dealing with non-citizens in relation to whom a protection finding has been made (para 9.1.1) and specific provisions dealing with non-citizens in relation to whom no protection finding has been made (para 9.1.2).
In the present case a protection finding has been made for the Applicant (see [32] above).
Paragraph 9.1.1 of Direction 99 provides:
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
The Applicant’s SFIC made the following submissions:
(a)The Applicant cannot be returned to Afghanistan without such return being a breach of the Act and of Australia’s international obligations.
(b)The Applicant has no rights of access to any other country. If he is not granted a visa, it is highly likely that he will be subject to indefinite detention.
(c)It is noted that NBMZ v Minister for Immigration and Border Protection;[93] NBNB v Minister for Immigration and Border Protection;[94] and WASB v Minister for Immigration and Citizenship[95] provide that a decision-maker and the Minister should consider the consequences of refusing a visa. In particular, where the result of refusing a visa would be indefinite detention or detention for an indeterminate period of time, the decision-maker and Minister must consider this result.
(d)The decision-maker should be mindful that the subject of the refusal decision is a protection visa and that the Applicant is prevented from making any other visa application.
(e)The Applicant has been detained for a decade. This is an extraordinary period of administrative detention, in circumstances in which, inter alia, he has been so badly assaulted that he suffered broken bones and the perpetrators were convicted of the offence and removed from Australia, his marriage broke down and he has spent his young adulthood (25 to 35) detained.
[93] [2014] FCAFC 38.
[94] [2014] FCAFC 39.
[95] [2013] FCA 1016.
The Minister’s SFIC contended as follows:
(a)Section 197C(3) of the Act ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under s 501 is made. The non-citizen remains an unlawful non-citizen and must remain in immigration detention as required by s 198 unless and until they are granted another visa, or they can be removed to a country other than the country by reference to which the protection finding was made.
(b)As the refusal related to a protection visa, the Applicant will be prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless the Minister determines that s 48A does not apply - see ss 48A and 48B of the Act).
(c)The Applicant will also be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see s 501E of the Act and regulation 2.12AA of the Regulations).
(d)Accordingly, if the visa is refused, the Applicant will remain in immigration detention for the reasonably foreseeable future.
(e)On the evidence before it, Tribunal should proceed on the basis that the Applicant will be held in immigration detention for an indefinite (that is, uncertain) period of time. As a result, this factor should weigh moderately in the Applicant’s favour. It ought not to weigh substantially in the Applicant’s favour in circumstances where it would be unlawful for the Commonwealth to remove him from Australia to Afghanistan (s 197C(3) of the Act).
I am satisfied that it is highly unlikely that the Applicant will be removed to Afghanistan in the event of an adverse decision under s 501. The practical consequence of affirming the decision not to grant the Applicant the protection visa will be that he will be detained in immigration detention for a period with no “fixed chronological endpoint” (WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[96] I also accept that, absent the Minister lifting the bar, the Applicant will be prevented from applying for a protection visa and any other class of visa except a Bridging R (Class WR).
[96] [2021] FCAFC 55.
In his statutory declaration of 24 February 2023 at [147] the Applicant referred to the fact that he has been in detention for more than nine and a half years and stated that:
This situation has caused me significant psychological stress, generally poor physical health, chronic pain and ongoing PTSD symptoms. I have flashbacks. I’ve been sexually assaulted and have suffered from being separated from now former wife, family and community.
At [148] of his statutory declaration the Applicant stated that:
I take several medications to treat insomnia, obsessive compulsive disorder, PTSD, panic disorder, major depressive disorder and for chronic pain.
At [150]-[152] of his statutory declaration of 24 February 2023 the Applicant stated:
150. Furthermore, on numerous occasions my treating doctors and concerned organisations, including the United Nations, have recommended that I should be released from detention. These requests have been ignored by the Department. See pages 408 onwards and 438 onwards of the G Documents.
151. One of the first recommendations for release from closed detention was from a Consultant Psychiatrist and Psychotherapist, Dr Katie Dimarco, who was asked to assess me in December 2014 by IHMS. At page 5 of her report dated 15 January 2015 (annexed as “SAJ-4”), she states “From a clinical perspective, I would advocate for community detention for [XRGY], as the detention environment is resulting in significant psychological stress for [XRGY], compounded by separation from his wife.” This was written more than eight years ago. I am now divorced from my wife and still in closed detention.
152. There are multiple medical reports from IHMS psychiatrists, external consultant psychiatrists, the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), and Foundation House (torture and trauma provider) which have noted my multiple medical conditions and treatments for the past nine years. I refer to my IHMS Clinical Records at SAJ-4 and the G Documents referenced below.
The statements made by the Applicant are supported by the documents to which he referred.
I accept that the continued detention of the Applicant for an indefinite period, or for a further period with no fixed chronological endpoint, would have a detrimental impact on the Applicant’s mental health and would expose the Applicant to further physical risk in the form of assaults by other detainees, as has been the case in the past. I am also mindful that an adverse decision will mean that the Applicant is effectively barred from applying from all but a very small and unlikely to be applicable types of visa.
The Minister, rightly, conceded that this consideration weighs against the refusal of the visa. I disagree, however, with the Minister’s contention that this consideration weighs only moderately in favour of the grant of a visa. In my assessment this consideration weighs heavily in favour of the Applicant being granted a visa.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country
The Applicant’s SFIC made the following submissions:
(a)The Applicant would face extensive impediments if removed. He is a Hazara, which is a persecuted minority in Afghanistan. He faces death, disappearance, assault or other significant harm on this basis if removed to Afghanistan.
(b)The Applicant has no family members or friends to support him in Afghanistan. His family home no longer exists, and he has not been to Afghanistan since 1999 (more than two decades) and not at all during his adult. He will struggle to subsist.
(c)Afghanistan is experiencing an extreme shortage of food, to which the Applicant will also be exposed.
(d)The Applicant has a number of health concerns, including being diagnosed with post-traumatic stress disorder, depression and severe anxiety. He is prescribed and takes psychotropic medication.
(e)Afghanistan has a large number of people with severe mental health issues but has limited infrastructure and specialist to provide care. There is also a societal stigma attached to people with mental health issues. Since the Taliban have taken over, there is no evidence that any mental health services are available at all (including access to medication), regardless of whether a person has funds to pay for them.
(f)The Applicant also has chronic back and associated leg pain from a workplace injury.
(g)The Applicant has no family or friends in Afghanistan. The Applicant left Afghanistan as a child in 1999 and has never returned. It is extremely difficult, if not impossible, to survive in Afghanistan without connections. The Applicant will need connections to get a job, be protected from extortion and bribery, and to secure a decent place to live. He has none of these connections.
The Minister’s SFIC made the following submission:
In circumstances where it would not be lawful to remove the applicant to Afghanistan, the extent of the impediments that he would experience in that country is not relevant to the Tribunal’s consideration. This factor should be given no weight.
The claims made by the Applicant in his SFIC are supported by the protection finding[97] and the material referred to therein. I accept the Applicant’s submissions set out in [174] above.
[97] R1/329-337.
The Minister contended that this consideration should be given no weight because it would be illegal to remove the Applicant to Afghanistan. That may well be the case, however, para 9.2(1) of direction 99 directs decision-makers to consider the extent of impediments that the non-citizen would face “if removed from Australia to their homeland”. I accept that it is highly unlikely that the Applicant will be returned to Afghanistan. However, I accept that the Applicant would face the very serious impediments identified by him in establishing himself if he were removed to Afghanistan. The fact that it is highly unlikely that he will be removed to Afghanistan significantly effects the weight that can be given to this consideration. I do not accept the Minister’s contention that it should be given no weight, but, given the extremely low likelihood that the Applicant will be removed to Afghanistan, I find that this consideration should only be given very minor weight in favour of the grant of a visa to the Applicant.
Impact on victims (para 9.3)
Both parties treated this consideration as not being relevant in the present case. I agree.
Impact on Australian business interests (para 9.4)
Again, both parties treated this consideration as not being relevant in the present case and again, I agree.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [48] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Direction issued under s 499 of the Act (see [41] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[98] and the Full Court judgment in Minister for Home Affairs v HSKJ.[99]
[98] [2018] FCA 594.
[99] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[100] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[100] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, does not weigh in favour of the exercise of the discretion under s 501(1) not to grant the visa (see [130] above).
I find that the next relevant consideration, the third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs against the exercise of the discretion not to grant the visa and that moderate weight should be given to it (see [137] above).
I find that the fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs against the exercise of the discretion not to grant the visa. Only minor weight should be given to this consideration (see [144] above).
I find that the fifth primary consideration, the expectations of the Australian community weighs in favour of the exercise of the discretion not to grant the visa but that only minor weight should be given to it (see [158] above).
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision weighs heavily against the exercise of the discretion not to grant the visa (see [172] above). I find that the consideration of the extent of impediments if removed weighs against the exercise of the discretion not to grant the visa, but that only minor weight should be given to it given the extremely low likelihood of the Applicant being removed to Afghanistan (see [177] above).
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [48] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of exercising the discretion not to grant the visa sought by the Applicant and those against the exercise of that discretion, I find that the considerations against exercising the discretion not to grant the visa outweigh those in favour of exercising that discretion.
DECISION
The decision of the delegate of the Minister dated 16 January 2023 to refuse to grant the Applicant a Protection (Class XA) visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Act.

I certify that the preceding 191 (one hundred and ninety one) paragraphs are a true copy of the reasons for the decision herein of

.......................Sgd.................................................
Associate
Dated: 13 April 2023

Date(s) of hearing: 30 and 31 March 2023

Counsel for the Applicant:

Solicitors for the Applicant:

Ms A Battisson

Human Rights for All

Counsel for the Respondent:

Mr B Kaplan

Solicitors for the Respondent: Australian Government Solicitor

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/0394
General Division	)

Date(s) of hearing:	30 and 31 March 2023
Counsel for the Applicant: Solicitors for the Applicant:	Ms A Battisson Human Rights for All
Counsel for the Respondent:	Mr B Kaplan
Solicitors for the Respondent:	Australian Government Solicitor