XTTV and Minister for Home Affairs (Migration) - [2018] AATA 3961

XTTV and Minister for Home Affairs (Migration) [2018] AATA 3961 (15 October 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2018/4166
GENERAL DIVISION  )
Re: XTTV
Applicant

And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL:  Deputy President J W Constance
DATE OF CORRIGENDUM:            1 November 2018
PLACE:            Sydney

IT IS DIRECTED that, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the text of the decision in this application is to be altered such that the wording of the decision is changed to:
1.The decision of the Minister of Home Affairs is set aside.
2.In substitution, it is decided that the Applicant should be granted a Protection (Class XA) visa.

3.The matter is remitted to the Minister for Home Affairs for reconsideration with a direction that the Applicant should not be refused a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth).

..................[sgd]................................................
J W Constance
Deputy President
Division:GENERAL DIVISION
File Number(s): 2018/4166
Re:XTTV
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Ian Hanger AM QC
Date:15 October 2018
Place:Sydney

The decision of the Minister of Home Affairs is set aside.
In substitution, it is decided that the Applicant should be granted a Protection (Class XA) visa.
.....................[sgd]................................
Deputy President Ian Hanger AM QC
CATCHWORDS
MIGRATION – refusal of a Protection (Class XA) visa on the basis of applicant’s failure to pass the character test – previous criminal convictions – Ministerial Direction no. 65 applied – whether there is a risk to the Australian community of the applicant committing further offences or engaging in other serious conduct – whether refusal is, or is not, in the best interests of minor children – whether the nature of the character concerns or offences are such that the Australian community would expect that the applicant should not be granted a visa – decision under review set aside and a new decision in substitution made
LEGISLATION
Migration Act 1958 (Cth), ss 499, 501
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Deputy President Ian Hanger AM QC
15 October 2018
INTRODUCTION
This is an application for review of a decision of a delegate of the Respondent dated 23 July 2018, refusing the Applicant’s application for a Protection (Class XA) visa pursuant to section 501(1) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant was born in Bangladesh and arrived in Australia on 23 April 1991, aged four. The Applicant has resided in Australia since then but for a five-year absence from 1996 to 2001 when he resided in Bangladesh.
In March 2012, he married an Australian citizen, with whom he has one Australian citizen daughter born in 2012.
In July 2018, he was divorced but remains on amicable terms with his former wife.
The Applicant has had quite a sad history. His parents are both naturalised Australian citizens, but they were very strict with him in his Muslim upbringing – a matter which they now regret. The Applicant subsequently experienced difficulties assimilating into the Australian culture as a child and he has quite a serious criminal history.
On 12 November 2004, he was engaged in an argument at a bus stop and during the course of the argument produced a knife and ended up in a physical fight and wounding someone in the shoulder. The Applicant was sentenced to imprisonment for a year but released forthwith on entering a reconnaissance to be of good behaviour for two years.
On 21 August 2005, he held up a service station with his face disguised, and threatened the store attendant with a 30cm knife and stole $245. The Applicant was sentenced to 4 years imprisonment with a non-parole period of 18 months and at the same time was convicted of a breach of reconnaissance.
On 1 May 2008, he entered a pizza store, produced a knife and ordered two employees, one of whom was a minor to hand over the cash drawer and obtained $300 to $600 from the robbery. The Applicant was at the time on probation. On 26 July 2012, the Applicant was convicted and sentenced to 5 years imprisonment for this offence, commencing on 12 November 2009. Twenty-eight days after being discharged from prison he was taken into immigration detention. The Applicant has been in detention since May 2014, both at Villawood and Christmas Island.
Between 2004 and 2012, the Applicant was convicted of multiple offences including drink-driving and dangerous driving.
All of this amounts to what could only be regarded as a serious criminal record.
At the time of all these offences he was addicted to alcohol and drugs. During the Tribunal Hearing held on 2 October 2018, the Applicant very frankly admitted the problems he had had with alcohol and drugs. The Applicant described his addiction as digging him deeper and deeper into a dark hole and that he knew that if he kept it up his future was bleak or non-existent. It was the birth of his daughter in 2012 that made him determined to turn over a new leaf and cure himself of his drug dependence.
The Applicant did that between 2012 and 2014 and admitted that there had been failures within the two-year period. Drugs were freely available. The Applicant said that when inmates began talking about drugs he just told them that he had to make a phone call and walked away.
By 2014, he was free of his drug dependence and has had no alcohol or illicit drugs since that date.
While in detention the Applicant has completed 25% of an online course in carpentry and hopes to further that. The Applicant advised that if released, he will be assisted in finding employment by relatives of his former wife who are involved in the building industry. The Applicant also expressed his desire to be involved in rehabilitation work with people who have suffered a similar life to his own.
The Applicant expressed what I regarded as sincere regret for his past errors which he knows are extremely serious. I accept that in the first place his wrongdoing was probably caused by his failure to reconcile a very strict Muslim upbringing with life in this country. The Applicant then took to drugs which led to crime in order to support the drug habit.
ISSUES
The Applicant accepts that he does not pass the character test pursuant to subsection 501(6)(a) of the Act.
Accordingly, the main issues to be determined are whether, having regard to Ministerial Direction 65, the Applicant is likely to engage in further criminal or other serious conduct and whether the nature of the character concerns or offences are such that the Australian community would expect that the Applicant should not be granted a visa .
EVIDENCE BEFORE THE TRIBUNAL
Professor Stephen J Woods (Clinical and Forensic Psychologist)
Professor Woods was called as an expert witness at the Tribunal Hearing. Professor Woods is a leading forensic and clinical psychologist. He has a very impressive curriculum vitae, which includes time as a consultant to The United Nations Office on Drugs and Crime, Interpol, Europol, the International Criminal Court, and many others. I was impressed by his evidence, and accept his findings. Professor Woods administered numerous psychological tests, and stressed that in the end, aided by these tests, clinical acumen remained extremely important.
Professor Woods was fully aware of the Applicant’s criminal history and drug addiction, and commented on the observation of the delegate in her decision wherein she stated: “Any rehabilitation XTTV achieved has yet to be tested in the unsupervised environment of the community.” Professor Woods commented that while this concern has general relevance, he opined that “analysis of the individual’s behaviour during times of highly stressful circumstances and in the absence of protective factors, has greater utility and predictive value when considering the level of future risk an individual will likely pose when in the community and has the benefit of significant protective factors.”
Professor Woods noted that while detained, the Applicant was advised by his case manager that he was to be immediately transferred to Christmas Island Immigration Detention without being permitted to collect his personal items or to advise his wife and family of the transfer before being taken to the facility. During the 19 months held at Christmas Island, he reportedly witnessed instances of detainees engaging in self-harm, attempted suicide, fights and other highly traumatic incidents. The Applicant also said that he witnessed traumatic incidents at Villawood.
In June 2018 and after being returned to Villawood, he was informed by his case manager that his wife had successfully filed for divorce and that it would come into effect in July 2018. He subsequently had contact with his wife and she explained that her deteriorating well-being, secondary to continuing uncertainty of his visa status and after a long period of separation, was the reason for seeking a divorce. The Professor refers to the above matters as being highly traumatic, and that despite the extent of the trauma, the Applicant had not relapsed into drug use and had behaved in the manner to which I refer below, as described by the Christmas Island welfare officer, Mr Marc Coleman.
Professor Woods also interviewed the Applicant’s former wife, his mother and his brother (who works for the Department of Foreign Affairs). The Applicant’s brother advised that the whole family were committed to assisting in the Applicant’s continuing rehabilitation.
Professor Woods asserts that the Applicant is now completely free of illicit drugs and alcohol, and does not exhibit signs of mental illness. He is however suffering from reactive dysthymia and features of post-traumatic anxiety, secondary to his experiences in detention and the uncertainty as to his future. Professor Woods considers it reasonable to conclude that these conditions will resolve themselves if the Applicant is permitted to remain in Australia. Professor Woods concludes: “As evidenced by his behaviour over the past four years, XTTV has been able to continue to rehabilitate himself in highly testing circumstances. In my opinion, this feature of his history strongly indicates future risk of substance use relapse and/or reoffending will be minimal in circumstances where he has a network of social supports and is not exposed to the same intensity of stressors as has been the case since being held in immigration detention. In my opinion the risk of the applicant relapsing with resumed substance abuse and reoffending can, on balance, be reasonably viewed as low.”
Professor Woods does however recommend, out of an abundance of caution that the Applicant obtain psychological treatment to assist with his reintegration back into the community if he is permitted to remain in Australia.
Mr Marc Coleman (Welfare Officer, Christmas Island Immigration Detention Centre)
Mr Coleman is a welfare officer at Christmas Island Immigration Detention Centre.
In Mr Coleman’s reference letter dated 24 May 2018 he states the following:
XTTV has displayed exceptional behaviour during this time and is a polite, friendly and courteous individual. He is a well-respected member of his community and is very popular amongst both his peers and staff members. Without doubt he is an exceptional role model to other detainees. He participates in many worthwhile and constructive activities on a daily basis and involves himself to a degree far greater than is required just for his attendance to be noted. He participates in gym, sport and recreational activities every day in order to keep himself physically fit and displays his creative side by joining in on art and craft classes regularly.”
XTTV has definitely made every attempt to make the most of his time in immigration detention in regards to bettering himself and learning new skills. He regularly endeavours to assist his peers with issues that may arise in their daily challenges and has been noted to diffuse difficult situations with his calm manner and friendly personality.
He has taken on a substantial role in our programs and activities Department as a sports assistant and freely gives up his own time to assist in the creation and implementation of sporting activities. He works hard to motivate others and assist them in their personal development. XTTV has proven himself to be invaluable in this role and has earned much appreciation and respect from his peers.
XTTV has never been involved in an incident while detained at Christmas Island Immigration Detention Centre. Nor has he been involved in any incident at any detention location. Subsequently, he has permitted to be housed in a good behaviour area of the facility and afforded special privileges and allowances pertaining to his status. However, in true testament to his character, he chooses to remain in mainstream accommodation where he can be of the most service to others. For these reasons and many others, I have no hesitation in providing a reference as to the good character of XTTV.
Ms Christine Bourke (Solicitor)
At the Tribunal Hearing, Ms Bourke tendered her statement outlining her experiences of working closely with individuals struggling with drug dependency issues and set out her opinion as to whether the Applicant is likely to re-offend.
Ms Bourke has been a solicitor for 43 years. For much of her career she worked in the field of criminal law and has been a public prosecutor in New Guinea and worked in the Office of the Director of Public Prosecutions (NSW) as an advocate. In 2009, she began her own practice specialising in criminal law. I accept Ms Bourke’s assertion that she is very well acquainted with the problems of addiction and has extensive experience dealing with people addicted to alcohol and drugs.
For over three years Ms Bourke was part of a community group which once a week visited detainees in Villawood. They spent many hours there socialising, talking and eating with the detainees. Ms Bourke saw the Applicant almost weekly until he was transferred to Christmas Island, and then again when he returned to Villawood. Ms Bourke also met the Applicant’s parents. Mr Bourke explained that she has had ample opportunity to observe and form an opinion about him, and is of the opinion that he was very honest with his past criminal history and former addiction, and that he has reformed and has been drug free throughout the whole time she has known him. Ms Bourke commented that drugs are freely available, but she has never seen the Applicant under the influence of drugs. In Ms Bourke’s opinion, the Applicant always appeared robustly healthy, clear eyed, alert and clear thinking. Ms Bourke said that she was extremely optimistic about the Applicant’s ability to remain drug-free, and to live a law-abiding productive life, and is of the opinion that the Applicant has minimal risk of reoffending, and has many protective factors which would help him to maintain a drug-free life; such as, a supportive family, insight into his previous criminal behaviour and addiction, emotional intelligence, and a long period of sobriety.
I was very impressed by Ms Bourke’s evidence and place considerable weight on her opinion.
Evidence by Applicant’s Sister
The Applicant’s sister gave evidence concerning her brother’s remorse at his past behaviour and his determination to lead a crime free life. She tendered her witness statement dated 28 August 2018 into evidence at the Hearing. The Applicant’s sister concluded her witness statement by saying: “I am a positive law abiding, proud citizen of Australia. I do not wish anyone to be a threat to my country. Yes, XTTV is my brother, but I would never say what I have said unless I totally believed it. I would never be the cause of that threat to my country. Nor would I set my brother up to fail. I say what I have said because I know he will not fail.”
I formed a good opinion of the Applicant’s sister, and was satisfied that if her brother remains in Australia, she and the other members of her family will do their best to support the Applicant in the challenging times that lie ahead.
RELEVANT LEGISLATION AND MINISTERIAL GUIDELINES
Migration Act 1958 (Cth)
Subsection 501(1) of the Migration Act 1958 (the Act) provides that 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. Subsection 501(6) and (7) of the Act, relevantly provides that a person does not pass the character test if they have a substantial criminal record.
MINISTERIAL DIRECTION NO. 65
This Tribunal is bound by Direction no. 65 issued pursuant to section 499 of the Act.
Subparagraph 6.2(1) provides some general guidance as to the application of the Direction. It states 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.
Subparagraph 6.3(1) provides: “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 threatened harm to individuals or the Australian community.”
Subparagraph 6.3(2) provides: “the Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere.”
Subparagraph 6.3(3) provides: “a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.”
Subparagraph 6.3(5) provides: “Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.”
Subparagraph 6.3(7) provides: “The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen’s visa should be cancelled, or their visa application refused.”
Furthermore, paragraph 8 of the Ministerial Direction stipulates that the Tribunal must take into account the primary and other considerations relevant to the individual case. Pursuant to subparagraph 8(4), primary considerations should generally be given greater weight than other considerations.
The three primary considerations under Part B of Direction no. 65 are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian community.
Primary Consideration 1 - The Protection of the Australian Community from criminal or other serious conduct
Paragraph 11.1 provides that a decision-maker must have regard to the principal that the government is committed to protecting the Australian community from harm as a result of criminal activity and that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. The decision-maker should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences.

There is no doubt whatsoever that the Applicant has committed serious offences for which he has spent time in prison. They involved the use of a knife; and in one case, a victim who was held up by the Applicant was a minor. However, the Applicant at the time of committing the offence, may well not have intended to hold up a minor. The sentences imposed by the courts, and the observations made at the time of sentencing, indicate that the offences were regarded very seriously and punished accordingly.
Subparagraph 11.1.2(1) requires a decision-maker to have regard to the principle that the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Given the Applicant’s history of a propensity to use a knife, the community could conclude that if he were to use a knife in a similar scenario there could be a risk of serious harm.
Subparagraph 11.1.2(3) requires the decision maker to take into account, cumulatively, the nature of the harm that might be inflicted, and the likelihood of the non-citizen engaging in further criminal or serious conduct, taking into account evidence of rehabilitation and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending.
While acknowledging that if the Applicant falls into criminal conduct of the kind referred to above, the consequences might be serious for a victim, I am satisfied, on the basis of the expert evidence provided by Professor Woods, the evidence - based on a lifetime of experience - provided by solicitor Ms Bourke, the welfare officer Mr Coleman, the Applicant’s sister, and from my own assessment of the Applicant, that his chances of reoffending are minimal.
Primary Consideration 2 - Best interests of minor children in Australia affected by the decision
Subparagraph 11.2(4) of the Ministerial Direction sets out the relevant factors that must be considered when making a determination about whether a refusal is, or is not, in the best interests of a child. Relevantly, these factors include, the nature and duration of the relationship between the child and the non-citizen,[1] the extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18),[2] and the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact.[3]
[1] Direction no. 65, subparagraph 11.2(4)(a).
[2] Ibid, subparagraph 11.2(4)(b).
[3] Ibid, subparagraph 11.2(4)(d).
The Applicant is the father of a six-year-old daughter. The Applicant’s daughter has visited him regularly in detention on a fortnightly basis when that has been possible. However, he has not had the opportunity of spending lengthy periods of time with her because of his periods in detention. I am satisfied however that his daughter is very important to him and that it was her birth that made him decide to turn over a new leaf in 2012. It would certainly not be in the best interests of his child to send the Applicant back to Bangladesh where his daughter would see him very rarely, if at all. The Applicant’s daughter is being raised in the Christian religion and therefore would be at risk in Bangladesh.
The Applicant also has a niece who would benefit by his remaining in Australia.
I have no doubt in concluding that it is in the best interest of both his daughter and his niece that he remains in Australia.
Primary Consideration 3 - Expectations of the Australian community
The Australian community is a fair-minded community. It has little tolerance for the crimes that the Applicant has committed. Subparagraph 11.3(1) of the Ministerial Direction makes it clear that the Australian community expects non-citizens to obey Australian laws while in Australia.
However, it is my view that the Australian community would take into account that the Applicant is of minimal risk reoffending: he is a father of a young child; has been here since he was four years old, but for a few years in Bangladesh; has served his time in prison for his offences, followed by years in a detention centre; that within the detention centre he has helped his fellow inmates; has been given a favourable reference by his welfare officer; has the support of his family; and is learning a trade.
Furthermore, the community would expect that he be permitted to remain in the country where he has resided for most of his life.
DECISION
I set aside the decision of the Respondent’s delegate to refuse the application by the Applicant for a Protection (Class XA) visa.
In substitution, I declare that the Applicant should be granted a Protection (Class XA) visa.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger AM QC

..............................[sgd].................................
Associate
Dated: 15 October 2018

Date(s) of hearing:
2 October 2018

Counsel for the Applicant: Mr V Kline

Counsel for the Respondent: Mr A Markus

Date(s) of hearing:	2 October 2018
Counsel for the Applicant:	Mr V Kline
Counsel for the Respondent:	Mr A Markus