YFJP and Minister for Home Affairs (Migration)
[2019] AATA 641
•11 February 2019
YFJP and Minister for Home Affairs (Migration) [2019] AATA 641 (11 February 2019)
Division:GENERAL DIVISION
File Number: 2018/6856
Re:YFJP
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 February 2019
Place:Brisbane
The decision under review is affirmed.
......................[SGD]...................................
Senior Member Theodore Tavoularis
MIGRATION – Visa Refusal – Applicant is a citizen of Iran – Applicant applied for a Bridging visa – s 501 character test applied – history of offending - Applicant does not pass character test in s 501(6) - whether discretion to refuse visa should be exercised – whether considerations in Direction No. 65 weigh in favour of refusing visa – visa should be refused – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 499, 500, 501Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under
s 501CA (“Direction No. 65”)REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 February 2019
INTRODUCTION
This is an application for review of the decision by a delegate of the Minister for Home Affairs (the “Minister” or “Respondent”) to refuse YFPJ (“the Applicant”) a Bridging E (Class WE) visa (“the visa”), pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant is a citizen of Iran. He is currently 36 years of age. He first entered Australia on 11 June 2012 as an Irregular Maritime Arrival.
The Applicant has accumulated a history of offending since being in Australia. This history of offending will be summarised below.
On 22 November 2012, the Applicant lodged an application for a protection visa. On 4 April 2013, a delegate of the Minister refused the Applicant’s application for a protection visa. This decision was affirmed on review by the Refugee Review Tribunal on 6 November 2013.
On 27 August 2018, the Applicant applied for the visa. The Minister’s delegate refused this visa on 19 November 2018, pursuant to section 501(1) of the Act. Notice of the visa refusal was sent to the Applicant via email on the date of refusal.[1]
[1] Exhibit 2, s 501 G Documents, G2, pages 12-13.
On 22 November 2018, the Applicant applied to this Tribunal for review of that visa refusal decision.
ISSUES
The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to subsection 501(6) of the Act. After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant’s visa.
The issues for this Tribunal to consider are essentially the same, being:
(a)whether the Applicant passes the character test as defined in s 501(6) of the Act; and
(b)if he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant the visa.
ISSUE 1: THE CHARACTER TEST
The first issue I must consider is whether, objectively speaking, the Applicant passes or fails the character test as defined in s 501(6) of the Act.
I note the Applicant contends that he does pass the character test.[2] This contention seems predicated on these things:
·The Applicant does not have a substantial criminal record;
·The majority of his offending has been punished by fines and/or the non-recording of convictions (and other non-custodial penalties);
·The Applicant has never been charged with violent offences, sexual offences or offences against vulnerable people;
·The Applicant has not offended while in immigration detention;
·The Applicant’s offending involves the commission of victimless crimes;
·His two driving offences were committed almost four years apart and should not be considered “criminal conduct” pursuant to s 501(6)(d)(i) of the Act.[3]
[2] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 10, paragraph [20].
[3] Ibid, paragraphs [21] - [28] (inclusive).
Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(c) and (d), which relevantly provide:
“s 501(6)(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; or
s 501(6)(d): in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(iii)engage in criminal conduct in Australia…”
Summary of criminal offending
The Applicant has a history of offending in Australia. It can be summarised as follows:
Offending in 2014:
(i)14 April 2014: convicted of “Never licensed person drive vehicle on road – first offence”. The Applicant was fined $400;
(ii)30 April 2014: convicted of “Induce pharmacist to dispense false prescription”. The Applicant was fined $800; and
(iii)23 July 2014: convicted of “Possess prohibited drug”. The Applicant was fined $200.
Offending in 2017:
(i)28 February 2017: convicted of “Enter inclosed [sic] land not prescribed premises without lawful excuse”. The Applicant had a conviction recorded with no other penalty; and
(ii)21 June 2017: convicted of “Possess prohibited drug”. The Applicant was fined $200;
Offending in 2018:
(i)16 May 2018: convicted of “Goods in personal custody suspected being stolen (not motor vehicle)”;
(ii)10 August 2018: convicted of:
· “Never licensed person drive vehicle on road – prior offence”;
· “Goods suspected stolen in/on premises (not motor vehicle)”;
· “Obtain prohibited drug from an authorised person with intent to deceive”; and
· “Obtain or attempt to obtain prohibited drug by false representation”.
(iii)For the totality of this offending in October 2018, the Applicant was disqualified from driving for three months (for the driving offence) and fined $110 (for the remaining offences).
The New South Wales Police have produced a fulsome “Facts Sheet” detailing the factual circumstances of the Applicant’s 2018 offending. In particular, the New South Wales Police noted that:
·“Some of the offences committed by the accused [the Applicant] have been on-going for a lengthy period of time and involve deceiving medical practitioners into issuing false prescriptions”;
·“The accused, [The Applicant], committed these offences with one known associate…”;
·When the police approached the Applicant’s vehicle, they “..observed the accused, [the Applicant], seated in the drivers seat and the co-accused… seated in the front passenger seat. Police requested [the Applicant] produce a license to which he was unable to do.”;
·“Checks on [the Applicant] revealed that he has never held a license within Australia and has been previously charged as such…”;
·“Further checks revealed certain intelligence to police and whilst speaking to the accused police observed him to be nervous, fidgeting and unsettled”;
·“…Whilst searching [the Applicant] police located within his wallet 8 prescription stickers for ‘Fentanyl 100 mcg – 5 patches’ Each prescription was issued by a variety of doctors in different names”;
· “…the prescription stickers clearly state that you must only take one patch every two days and within the above dates…[the Applicant] had received upwards of 40 patches in which police were aware of [sic]”;
·Police obtained a search warrant on 29 May 2018. That warrant “…authorised police entry and search powers for unit [address omitted], NSW relating to an investigation into the supply of the prohibited drug, Fentanyl, from the premises”;
·Upon execution of the search warrant, police noted that “Within the room of [the Applicant], police located 5 prescription stickers in the name of [the Applicant] for Durogesic 100 mcg (Fentanyl) patches inside his wallet and a further 6 stickers inside a suitcase”;
·While executing the search warrant, police further noted that “Also located within the suitcase was red & black pouch. Inside the pouch was a Commonwealth Bank Mastercard and Malaysian ID… [The Applicant] later advised police he had located the items within his unit complex approximately 2 months prior and at no stage made any attempts to locate the owner nor take the items to a police station…”;
·Police also executed a search warrant in relation to a black Holden Captiva and noted “...Located in vehicle were numerous pharmacy receipts and documentation in relation to obtaining Durogesic 100 mcg (Fentanyl) in the name of [the Applicant]…”;
·“[the Applicant] participated in electronically recorded interview where he made full admissions of the offences. [The Applicant] informed police he attended multiple doctors within days requesting new prescriptions for Fentanyl”; and
·“[The Applicant] also stated he works in construction as a labourer with no current injuries. Subsequently, [the Applicant] made admissions of obtaining the prohibited drug under false representation.”[4]
[4] Exhibit 2, s501 G Documents, G2, New South Wales Police Facts Sheet, pages 32-36.
The Character Test: Application of Section 501(6)(c)(i) and (ii) of the Act
The Respondent contends that the Tribunal should be satisfied that the Applicant does not pass the character test because his past and present criminal conduct (as defined by s501(6)(c)(i) of the Act) and his past and present general conduct (as defined by s501(6)(c)(ii) of the Act) are such as to cause him to fail to meet the necessary threshold.
In the alternative, the Respondent contends that in the event the Applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct here, as contemplated by s501(6)(d)(i) of the Act.
The assessment of whether an Applicant passes the character test pursuant to s501(6)(c) or (d) of the Act is governed, respectively, by paragraph 5 of Annex A of Direction 65 (“the Direction”) and paragraph 6 of Annex A of the Direction.
With specific reference to ss 501(6)(c)(i) and (ii), the Direction provides that “the concepts of criminal 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.”[5]
[5] Paragraph 5(2) of the Direction.
There is a requirement on a decision-maker that, when making an assessment of whether a person is not of good character, it is necessary to take into account a complete picture of the Applicant’s character. This complete picture must take into account what the Direction describes as “…all the relevant circumstances of the particular case…”. This, to my mind, involves a holistic and longitudinal examination and consideration of the Applicant’s offending history.[6]
[6] Paragraph 5(3) of the Direction.
Paragraph 5(3) of Annex A of the Direction seeks to augment the formulation of the “complete picture” of the person’s character by directing a decision-maker to a formulaic understanding of the concept referred to as “of good character”. This paragraph of the Direction cites the authority of Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, where this concept was defined to mean:
“…enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community, but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.”[7]
[my underlining]
[7] Per Lee J at paragraph [34].
The Respondent observes that, applied to the present case, the Applicant’s conduct is indicative of a lack of enduring moral quality such that it outweighs any consideration of more recent good behaviour. While that contention is well made, I do not think the Applicant’s conduct – viewed in totality – reaches even this threshold of more recent good behaviour. This is because his offending – be it past/present criminal and/or past/present general conduct has not had any prolonged or demonstrative period of “more recent good behaviour”. The Applicant arrived here in June 2012. He has offended in each of the 2014, 2017 and 2018 years.
One is hard-pressed to find a pattern of soundness and reliability in the moral judgement of this Applicant in the performance of his day-to-day activities. All too often in matters such as this, decision-makers focus on whether or not an Applicant’s offending affects his/her repute, fame or standing in the community. To my mind, the focus of the enquiry for present purposes is one of trying to ascertain any theme of the Applicant consistently living his life in the community according to the enduring moral principles contemplated by the Direction. I am hard-pressed to do so.
Paragraph 5.1 of Annex A of the Direction sets out factors to be considered by a decision-maker in considering whether a person is not of good character on the basis of past or present criminal conduct. Those factors comprise:
(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.
The Respondent rightly makes the concession that there was no violence involved in the Applicant’s offending. Be that as it may, his offending has been dealt with via numerous impositions of fines, disqualification from driving and the recording of a conviction but with no further punishment. What cannot be ignored is the frequency of the Applicant’s offending. He has been in this country since mid-2012. As at the end of last year, he had been a member of the Australian community for something in the order of 78 months. In that time, his offending conduct has caused him to be dealt with by lawful authority on 14 April, 30 April and 23 July 2014, plus 28 February and 21 June 2017, plus 16 May and 10 August 2018. This comprises seven episodes across 78 months, which equates to roughly one sentencing episode every 11 months during his time in this country.
Put another way, the Applicant’s criminal history runs for a period of four years, from April 2014 to August 2018. This four year period has seen him commit ten offences, the most recent of which he was convicted on 10 August 2018 – barely five months before this hearing. Whichever way one interprets the history, it cannot be denied that the Applicant’s offending is of a frequent and repeated nature.
A further dimension of the offending involves its seriousness. The Applicant has committed multiple frauds on medical professionals for the specific purpose of inducing them to wrongly prescribe or dispense drugs to him, which the Applicant knows or ought reasonably to know, that those drugs should legitimately be prescribed to patients who medically require them. This offending is not incidental, nor is it an inadvertent by-product of lawful activity. It is deliberate conduct perpetrated upon medically professional people for the specific purpose of wrongfully obtaining something that the Applicant knows only too well he is not entitled to.
The abovementioned factual history recorded by the New South Wales Police at the time of the Applicant’s sentencing episode on 10 August 2018 demonstrates this fraudulent conduct has been perpetrated by the Applicant on at least eight medical doctors or pharmacists. This conduct is demonstrative of two things. First, the Applicant has not understood or taken heed of the very visible and vocal governmental and community campaigns against the scourge of prohibited drugs on the Australian community. Second, although the evidence is scant, one can only be left to wonder what the ultimate end-use the Applicant sought to make of the drugs he unlawfully induced from third parties under false pretences.
A similar comment (and finding) can be made with regard to the Applicant’s history of unlicensed driving. As I understand this offence, it does not contemplate the Applicant previously being the holder of a valid driver licence and, for some reason, losing his driving privileges during the currency of that licence. Importantly, the charge is one of “Never licensed person drive vehicle on road” (my underlining). This must surely mean that for the totality of his time in this country, the Applicant has never successfully passed a test to obtain a driving licence. In other words, he has been an unlicensed driver in this country since he arrived here in June 2012.
The Applicant’s refusal to become duly licensed to operate a motor vehicle is demonstrative of his lack of understanding about the purpose behind the law’s requirement for a driver to hold a valid licence. The obtaining of a licence – as the Applicant must surely know – involves an independent third party making an assessment of whether a person has achieved the necessary level of proficiency to drive, manage and control a motor vehicle. The specific purpose behind this policy is to ensure that those driving motor vehicles on our roads do so in a way that protects members of the Australian community from serious physical harm and death.
Viewed cumulatively, the Applicant’s repeated fraudulent conduct aimed at inducing medical professionals to wrongly prescribe or dispense prescription drugs to him and his repeated refusal to obtain a driver licence demonstrates a blatant disregard for lawful authority governing the Australian community to which he now seeks to be returned and which the overwhelming remainder of the Australian community duly observe.
When confronted with the possible reality of his visa being refused, the Applicant engaged medical expertise in an effort to explain the reasons behind his conduct in inducing medical professionals to wrongly prescribe or dispense drugs to him. According to the Applicant:
“Part of the reason for some of my offences is that I was self treating for my back pain, which is made worse when I go to work. I attach a report from Dr [name redacted] dated 15 November 2016 which notes the medical problems with my back…
When I was outside Immigration Detention I obtained Fentanyl Patches to stop the pain, but I did that too much. I also took other drugs to stop the pain.”[8]
[8] Exhibit 2, s501 G Documents, G2, pages 151-153.
There are, to my mind, some quite significant difficulties with this attempt by the Applicant to either explain or ameliorate the nature and extent of his offending involving drugs:
·First, the New South Wales Police record shows that “…the prescription stickers clearly state that you must only take one patch every two days and within the above dates…[the Applicant] had received upward of 40 patches in which police were aware of…”[9];
·Second, although the Applicant refers to “Fentanyl Patches to stop the pain”, there is no evidence before the Tribunal that the Applicant was actually prescribed Fentanyl patches by a duly authorised medical professional and, if so, at what dosage (my underlining). The highest the Applicant puts it is when he says “I was self treating for my back pain…” I also note that in purporting to reply to the Respondent’s refusal to grant the visa (as per the Respondent’s letter dated 29 August 2018), the Applicant was relying on a medical letter dating from 15 November 2016;
·Third, the Applicant’s protestations of “…my back pain, which is made worse when I go to work,” is at odds with an earlier statement to New South Wales Police by the Applicant to the effect that “…he works in construction as a labourer with no current injuries.”[10]This was followed by him making “…admissions of obtaining the prohibited drug under false representation.”[11]
[9] Ibid, G2, page 34.
[10] Ibid, G2, page 36.
[11] Ibid.
The theme of unreliability of the Applicant’s evidence seems to have been detected by earlier decision-makers. A decision-maker in 2013 (actually, a delegate of the Minister) noted these things:
“Given the numerous contradictions noted in the Applicant’s claims and having considered the perfunctory account of Christianity by him, I have formed the view that the Applicant has fabricated his account of the manner in which he alleges to have learned of being wanted by the Iranian authorities and the arrangements he made to depart Iran…
…I do not accept that he was a genuine Christian at the time of his departure from Iran and I do not accept that he had any problems with the Iranian authorities because of his religious beliefs in the past. I also do not accept there has been a subpoena issued to the Applicant by the Iranian authorities for this reason. I accept that the Applicant departed Iran via Imam Khomeini International Airport, legally traveling on his own passport. However, I do not accept that the Applicant departed Iran fearing the attention of the Iranian authorities. I do not accept that the Applicant’s home has been raided by the Iranian authorities either prior or since his departure from Iran, or that the purpose of these raids was to search for the Applicant.
…
I am not satisfied that the applicant is a witness of truth. I do not accept that he is a genuine, committed Christian. I do not accept that he is compelled to practise as a Christian, or that he would be compelled by his faith to proselytise to others if he was to return to Iran. I am also not satisfied the applicant has investigated Christianity and been baptised in Australia for any other reason other than to strengthen his refugee claims.”[12]
[12] Ibid, G2, pages 68-70.
As noted by the Respondent, the Applicant was already 30 years of age when he arrived here as an Irregular Maritime Arrival. There seems a consistent thread of artificiality and self-serving convenience on almost every occasion he has sought to explain his conduct to lawful authority in this country. The delegate’s abovementioned findings in 2013 are self-explanatory. The lack of credibility behind what he told the Respondent in August 2018 about his use of Fentanyl patches seems clear. Likewise, the inconsistency between his claims (made in August 2018 to the Respondent) of Fentanyl use to ameliorate back pain arising from his work as a labourer are squarely at odds with what he previously told New South Wales Police in May 2018.
I am concerned – but have difficulty in making conclusive findings about - additional evidence appearing in the New South Wales Police Facts Sheet, dating from May 2018. The evidence involves police locating in a suitcase in the Applicant’s room a Commonwealth Bank MasterCard and Malaysian ID bearing another person’s name. The Applicant tepidly and unconvincingly sought to explain this evidence on the basis that he had found these items in his unit complex about two months prior, but elected to do nothing about the “find” – be it (1) attempting to locate and return the goods to the rightful owner or (2) to take the items to a police station.
The Applicant has not demonstrated any evidence of recidivism. His albeit relatively brief history demonstrates little or no hesitation in committing repeated offences including (1) the very serious offending around his fraudulent, dishonest and misrepresentative behaviour involving the inducement of medical professionals to provide prescription drugs to him to which he is not entitled to, and (2) his refusal to operate a motor vehicle within lawful parameters as the holder of a valid and current driver licence, demonstrates both a blatant disregard for lawful authority and a clear lack of insight that what he is doing puts members of the community around him directly in harm’s way.
I am thus of the view that the Applicant’s past and present criminal and general conduct is demonstrative of a lack of good character such that he does not pass the character test on any of these bases.
The Character Test: Application of Section 501(6)(d)(i) of the Act
Section 501(6)(d) of the Act is forward-looking and operates in a predictive way – that is, it purports to assist a decision-maker in assessing the risk of the person, in future, engaging in any further conduct specified in that section. For present purposes, the “further conduct” involves an assessment of the Applicant’s risk of engaging in criminal conduct were he allowed to remain in Australia.[13]
[13] S 501(6)(d)(i) of the Act.
The Applicant will not pass the character test if there is a discernible risk of him re-offending in the same mode as is evident in his history thus far.[14] The threshold of the level of risk is low. An Applicant will not pass the character test if there is evidence suggesting that there is more than a minimal or remote chance of the Applicant engaging in criminal conduct of the type evident in his offending history to date.[15]
[14] Annex A to Direction 65, paragraph 6 (1).
[15] Ibid, paragraph 6 (2).
The mere presence of conduct specified in s501(6)(d) of the Act is not sufficient to ground a finding or assessment about future risk. A decision-maker is required to identify a factor or factors pointing to an ascertainable risk that the Applicant would engage in such conduct in the future.[16]
[16] Ibid, paragraph 6 (3).
His history of offending has an undeniably persistent and consistent nature. As mentioned, his history indicates a conviction for an offence approximately every 11 months that he has been in this country, since June 2012. Moreover, the Applicant has been convicted of crimes, such as “possession of a prohibited drug” or “never licensed person drive vehicle on road”, multiple times throughout his offending history. It appears that the fines and punishment imposed on him by the sentencing courts have been not yielded any deterrent effect in terms of the Applicant’s propensity to offend. The Applicant cannot suggest that his offending is a by-product of miscreant youth. All of the Applicant’s offending has been committed in his 30s. It is not abating and he was most recently before the courts less than six months ago.
The evidence says little, if anything, about any discernible level of rehabilitation or, in the alternative, that the factors giving rise to his propensity to offend have been identified and are the subject of a professionally overseen regime of treatment. Indeed, in response to a likelihood of the Applicant committing further criminal offences in future, the psychologist, Ms Greta Goldberg, opined as follows:
“If [the Applicant]was released from immigration detention by the Minister, would he be: Likely to commit criminal offences?
His previous criminal offences were associated with dependence on prescription medication for pain. He reports that since completing the methadone program, he is no longer addicted and does not find the current level of chronic pain to be unmanageable. Nevertheless, he would benefit from ongoing psychological counselling, and pain management which would only be available to him if he were living in the community with appropriate treatment and support.” [17]
[my underlining]
[17] Exhibit 1, Tribunal Bundle of Material, Document at Tab 22, Report of Greta Goldberg, Clinical and Forensic Psychologist, dated 24 January, 2019, page 10.
In his evidence in chief and in his representations to the Respondent, as recently as September 2018, the Applicant has spoken of an intention to continue and to otherwise maintain an engagement with programs of rehabilitation. For example, he has said that he will continue the methadone program were he to be released from immigration detention. As will be demonstrated later in these reasons, one can have significant misgivings about the veracity of the Applicant’s evidence in this regard.
During the hearing, the Applicant repeatedly said that he was “sorry for what he had done”. As I recall the evidence, this sort of remorse was usually expressed by the Applicant when he had no other rational explanation or answer to a question asked of him in either evidence-in-chief or cross-examination. A similar observation can be made about the Applicant’s ready resort to earlier stated claims of pain in the region of his lumbar spine resulting from his previous work as a labourer, both in the building and construction industry and as a result of the work he has done as a house painter.
To my mind, the overall posture of the Applicant’s evidence is one that demonstrates a marked lack of insight into the history of his offending and, more particularly, a failure to recognise the lack of resolution of his substance abuse issues that lie at the root of the problems he has had with lawful authority. He refuses to confront the clear and obvious issues he has with opioid substance abuse and, instead, maintains his position, as recently as September 2018, when he told the Respondent about his asserted lumbar spine issues. Yet, in May 2018, he voluntarily provided a statement to police confirming that he had worked in construction but did not have any ongoing injuries as a result of that work.
It seems to me that the Applicant predicated his evidence on the basis of dealing with or “batting away” difficult questions about the inconsistencies in his story about pain management, rather than accepting his issues with opioid substance abuse and defining a treatment methodology that could reasonably convince a decision-maker that those issues either had been or were well on the way to being resolved. This evidentiary posture lends weight to the suggestion that his professed remorse is less than genuine and that his insight into his offending is either incomplete or otherwise stated in self-serving terms.
As mentioned earlier, the Applicant’s offending has an undeniable flavour of consistency and repetition. It is, to my mind, significant that offences such as unlicensed driving and inducing medical professionals to provide him with prescription drugs to which he has no entitlement were first committed in 2014, are re-committed then in virtually identical factual circumstances four years later in 2018. In those circumstances, it is difficult to avoid a conclusion that there is more than a minimal or remote chance that this Applicant, if allowed to remain in Australia, would engage in further criminal conduct of the type he has previously committed.
There are issues with the credibility and genuineness of the Applicant’s evidence. It is a matter of record that a previous decision-maker who refused his protection visa application had serious and fatal misgivings about his evidence and did not think the Applicant was a witness of truth.
I am therefore of the view that any assessment of the Applicant’s risk to in future commit similar offences to those he has committed in the past is a genuine and real risk. My consequential finding is that the grounds of s501(6)(d) are enlivened because, having regard to the Applicant’s evidence as a whole, there is more than a minimal or remote chance that, if allowed to remain in Australia, the Applicant would engage in conduct similar or identical to the offending he has committed in the past.
Given my finding of a genuine and real risk that the Applicant would engage in future criminal conduct, I am of the view that he does not pass the character test on the basis of s501(6)(d)(i).
Character test conclusion
In assessing the Applicant’s conduct and whether his offending is such as to cause him to fail the character test, I find that he does indeed fail the character test pursuant to both s501(6)(c)(i) and (ii), and s501(6)(d)(i).
ISSUE 2: DISCRETION TO REFUSE VISA
In circumstances where a visa applicant does not pass the character test, the determinative issue then becomes whether the decision maker should exercise the discretion in s 501(1) of the Act to refuse the visa.
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
… a decision maker must take into account the considerations in Part A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.[18]
[18] Direction No. 65, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised 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;
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4) In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable;
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
Paragraph 8(1) of the Direction provides that a decision-maker must take into account the Primary and Other Considerations relevant to the individual case.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction stipulates the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia; and
c) Expectations of the Australian community.
The Other Considerations which must be taken into account for visa refusal matters are provided in a non-exhaustive list in paragraph 12 of the Direction. These Other Considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal activity or other serious conduct. Paragraph 11.1 of the Direction further provides that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The evidence of the Applicant – in chief and under cross-examination
Any fulsome consideration of the Primary and Other Considerations in a matter such as this requires a similarly fulsome comprehension of the Applicant’s evidence and chief and how that evidence emerged from the rigours of cross-examination. The Applicant’s evidence in chief appears in the written material before the Tribunal.[19] He was ably taken through that evidence by his representative at the hearing.
[19] Exhibit 1, Document 2, Statutory Declaration of the Applicant, made on 24 January 2019.
Under cross-examination by the Respondent’s representative, the Applicant was asked how he supported himself for the period he has been in the community during his time in Australia. The Applicant responded by saying that in the initial phase he was on Centrelink benefits. In terms of accommodation, he said the Red Cross organisation provided him with approximately six weeks of free accommodation. When that free accommodation ended, the Applicant said he was able to pay his rent to private landlords from his Centrelink benefits.
The Applicant also spoke of his unfortunate contraction of Hepatitis C. He said that he had recently finished a course of treatment some two weeks prior to the hearing. He acknowledged that he also has psychological issues and that he has sought treatment from health professionals for these issues and the Hepatitis C condition while he has been in immigration detention. He told the Tribunal that he had made contact with a support group or organisation known as “Hep C NSW”. In terms of the current state of both his Hepatitis C condition and his psychological symptoms, the Applicant said he had made requests for referral or treatment while in immigration detention as recently as one month ago.
The Applicant said that he arrived in Australia in 2012 without a visa and as an Irregular Maritime Arrival. He said the principle reason that he came to Australia was because he had converted to Christianity. This asserted purpose for leaving Iran was challenged by the Respondent’s representative who referred the Applicant to the report of Ms Greta Goldberg, which relevantly states that the Applicant more likely arrived here because of domestic or family pressures and/or difficulties. Ms Goldberg noted that the Applicant:
“…described his home [in Iran] as ‘very pressuring’ as he grew up he witnessed his parents fighting and their experience of poverty. He describes a very difficult childhood which has affected his life as an adult, leading him to venture to Australia to find himself.”[20]
[20] Ibid, Document 22, Report of Greta Goldberg, Clinical and Forensic Psychiatrist, dated 24 January 2019.
It was put to the Applicant that the reason he gave to Ms Goldberg about coming to Australia really had nothing to do with his fearing persecution in Iran because of his apparent conversion from the Muslim faith to Christianity. The Applicant’s unconvincing reply was to say two things. First, that his domestic life at home was not very happy because of his father, who apparently is an extremely religious person and who works in the administration area of the Iranian army. Second, he said that perhaps Ms Goldberg had elected to express his story in the way that she did because she may have mis-recorded what he had told her.
The Applicant agreed that his previous application for a protection visa had been refused by a delegate of the Respondent, and that this refusal was later affirmed by the Refugee Review Tribunal. He was specifically referred to the Delegate’s findings (in 2013), containing, as they did, serious misgivings about the real purpose behind the Applicant’s intention for his conversion from the Muslim to the Christian faith. In particular, he was referred to these written findings of the Delegate on this issue:
“Given the numerous contradictions noted in the applicant’s claims, and having considered the perfunctory account of Christianity given by him, I have formed the view that the applicant has fabricated his account of the manner in which he alleges to have learned of his being wanted by the Iranian authorities and the arrangements he made to depart Iran.
…
On the basis of the information before me, I am not satisfied that the applicant investigated Christianity and was baptised in Australia for any reason other than to strengthen his claims to be a refugee. I find that the applicant has engaged in this conduct in Australia for the sole purpose of strengthening his refugee claims…and, as such, I have disregarded that conduct for the purposes of assessing the claims under the Refugees Convention criteria.”[21]
[21] Exhibit 2, s501 G Documents, G2. pages 68-69 and page 74.
The Applicant’s response to these findings was to say that he had practised Christianity since the protection visa was denied to him and that he had attended the same Christian church as and when he could during his time in Australia. For reasons that will become apparent from the evidence of Pastor P (name redacted), little or no credence can be allocated to this evidence.
The Applicant was then taken to the specific part of the G Documents relating to his explanation of how he came to develop an over-reliance on opioid substances. The Applicant was shown a copy of his letter previously forwarded to the Respondent in which he said:
“Part of the reason for some of my offences is that I was selftreating for my back pain which is made worse when I go to work. I attach a report from Dr [name redacted] dated 15 November 2016 which notes the medical problems with my back. He suggested that I need to consider pain management options including an epidural steroid injection.
When I was outside Immigration Detention I obtained Fentanyl Patches to stop the pain, but I did that too much. I also took other drugs to stop the pain.”[22]
[22] Ibid, G2, page 53.
The Applicant was then taken to paragraph 13 of his statutory declaration,[23] where he explained his detection and prosecution for unlawful possession of a prohibited drug as follows:
“…when I was first charged for possession on [sic] fentanyl Patches on 23/07/2014, I was carrying Fentanyl patches for which I had a prescription from Doctor [name redacted], but I did not have it on me and therefore was charged with possession. I never turned up to court because I didn’t speak English, understood the court procedure and was extremely scared that I might be taken to Migration detention and deported. I was convicted and received a fine of $200 for that offence.”
[23] Exhibit 1, Document 2, Statutory Declaration of the Applicant, made on 24 January 2019.
He explained his conduct in inducing a health professional to dispense the prohibited drug without producing a prescription as follows:
“23. My first possession offence was when I was arrested and charged by police for possession of one Fentanyl patch of 50mg on 24th of June 2014 at Talopia. I was prescribed by Dr [name redacted] from [location of medical practice redacted for 5 patches to use a patch every three days. I was at the time on my way to my friends house where I planned to sleep that night. I didn’t have the prescription on me and was told that I will send you to court and if I could go get a prescription, the court will dismiss the matter. I went to Dr [name redacted] to get a letter but was told that he did not want to get involved in police matters and did not give me a letter. I was convicted of that offence and fined $200.”[24]
[24] Ibid, paragraph [23].
In terms of explaining this conduct, the Applicant could take it no further than “…my English understanding was low and if I had the prescription I wouldn’t have to go to the court.” There is no actual explanation of how or why he induced someone to dispense a prohibited drug.
The cross-examination then proceeded to how the Applicant came to be involved in this unlawful activity. The explanation lacked both credibility and any semblance of believable logic. What should, in my view, be kept in mind when assessing this evidence from the Applicant is that he committed these offences as a mature adult man of 32 years. He is describing perhaps conduct of a naïve youth, but it is stretching the bounds of reasonableness to accept that what he has said both in his statutory declaration and in his oral evidence can somehow be accepted as true. The Applicant explained his involvement in the circumstances of the 2014 offence (inducing pharmacist to dispense false prescription) as follows:
“21. I was charged for inducing pharmacist to Dispense False Prescription. I entered a plea of not guilty for that offence because it was for a friend of a friend. At the time, I knew little how things worked in Australia and it was very common in Iran for us to go to a chemist with a prescription and buy the medication for elders.
22. On that day, I finished work from carwash…. I was on my way to my friends house…. I went to buy cigarettes…. As I was walking to Woolworths I saw [person A]a regular customer at the carwash with another man sitting in a van. I was asked by [person A] to help [person B] and get him the prescription from the chemist close to Woolworths. I didn’t think much of it and simply did it because I believed that I was helping an elderly man. When I went to the chemist, the pharmacist knew [person B] and told me that the prescription does not belong to me and I should tell the person who has the prescription to come. I came back to ask [person B] to come as the pharmacist wont give me the medication. He told me that his leg hurts and I should go back and he will call them to give me the medication. I went back inside and [person B] called them to tell them that I was a relative and give me the medication. The pharmacist told him that she cannot do that and she locked the door on me. The undercover police officers came and arrested me and charged me and for that offence. I went to the court and received a fine of $800 for that offence.”[25]
[25] Ibid, paragraphs [21] and [22].
The unconvincing nature of this evidence is obvious. The Applicant was asked why both the regular customer (person A) and the older person (person B) did not go to a pharmacy themselves to obtain the subject medication. In his oral evidence, the Applicant had no effective answer other than to say that the matter went awry for him “…because I found out later on that the prescription was forged. I found out about the forgery because once the pharmacist locked the door on me, the pharmacist told the undercover police that the prescription was forged.”
This is evidence sought to be relied upon by the Applicant, a mature man, then aged 32 years. This is evidence sought to be relied upon in circumstances where it is entirely reasonable to expect that the Applicant either (1) was aware that trying to induce healthcare professionals to prescribe and dispense drugs in this manner was illegal, or, at the very least, (2) he must have surely previously tried this exercise only to have been politely rebuffed by a pharmacist who also, most likely, would have explained the correct procedure to him. Therefore, there is next to no credibility in any explanation asserting that the Applicant was “set up” with a forged prescription or, on the other hand, that he didn’t know the illegality of what he was doing. In my view, he did.
The Applicant was also cross-examined about his offences involving unlicensed driving. Several things can be said about this offending. First, the offence is recorded as “Never licensed person drive vehicle on road”. As best as I recall the evidence and submissions, there was no contest that, in proffering this charge, the law enforcement authorities did so on the basis, not that the Applicant once had a current New South Wales driver licence, but that he had never been licensed to drive a motor vehicle in that state or elsewhere.
Second, the Applicant produced a two page photocopy of an untranslated identification card item purporting to be his driver licence from Iran. His evidence was that at some point after his arrival in Australia, he attended at the relevant State Government Authority dealing with the issuing of driver licences and caused this purported Iranian driver licence to somehow be “registered” with the New South Wales authorities such that he could validly drive a motor vehicle in New South Wales.
Third, the Applicant says that after he registered his Iranian driver licence in New South Wales, the period of its registration as some sort of “International” status driver licence apparently expired and, due to that expiry, the Applicant came to be an unlicensed driver in New South Wales.
There are two questionable, and in my view, fatal difficulties with that position. First, the Applicant produced absolutely nothing from the relevant driver licence authority giving any indication that the purported Iranian licence had been somehow recorded, registered or made effective for the Applicant’s use in New South Wales. Second, if, as the Applicant says, he once had a valid driver licence in New South Wales, then that fact would have been known to the authorities who, in turn, would have worded the charge as “unlicensed driving” (or equivalent) and not “Never licensed person drive vehicle on road”.
The Applicant was then taken to the circumstances of his offence in 2017 involving “Enter inclosed [sic] land not prescribed premises without lawful excuse”. In his oral evidence, the Applicant effectively repeated his written explanation:
“24. [I and another person] were drinking that night. I was very drunk. It was around 2 or 3 am and was falling asleep and he took me to a house to sleep. We were both sleeping and woke up to police in the house at around 7:30 in the morning. The inclosed land was empty and was awaiting demolition for development of high rises. We were both arrested and charged. I went to court and explained what happened. The Magistrate told me because I was working and was paying my fines on a fortnightly basis, he will forgive me and not fine me for that offence. The magistrate convicted me and did not impose any further penalty.”[26]
[26] Ibid, paragraph [24].
This offending is sought to be attributed to a lack of judgement by the Applicant as a result of intoxication. Once again, the Applicant’s evidence is flavoured by the involvement or causative behaviour of someone else, which always seems to result in the Applicant coming off second-best and falling afoul of lawful authority. I do not accept this sort of explanation as, in any way, sufficiently convincing.
A similar theme can be gleaned from his offending in 2017 involving possession of a prohibited drug. Again, a third person is said to be involved and causative of the conduct giving rise to the offence and conviction. There is no pause or contemplation by the Applicant that what he was doing may have been wrong or illegal, despite the reality that he had been previously convicted for possession of a prohibited drug three years earlier, in 2014. For the 2017 possession offence, the Applicant said:
“I was arrested by police for possession of half a tablet of Alprazolam on 19/05/2017. It was actually less than a quarter of a tablet. I was on my way to work that afternoon… I was given that tablet by my friend because I could not sleep after work because of my back pain and stress in my life. I was convicted and fined $200 for that offence.”[27]
[27] Ibid, paragraph [25].
The Applicant was then taken to the circumstances of his offending for which he was convicted in May 2018 involving him being in possession of 8 Tramadol tablets. The Applicant explained the circumstances of his offence as follows:
“26. I was stopped and searched by police in merryland with my consent because I admitted to them that I was a drug user. The police officers that stopped and searched me was a guy and a girl. They found 8 Tramadol tablets on me. I told them that I had prescription for those medications at home. The male police officer told me to go get the prescription and bring it back to the Merryland police station. He told me that if I had the prescription, he will not charge me and return my tablets. When I attended the police station, I gave them the card that the male police officer had given me and asked for him. I was told that they had gone out to a job and I should come back later to see him. I went to work after and didn’t go back. I was later convicted my absence [sic] for the offence and was fined $300 by Fairfield court.”[28]
[28] Ibid, paragraph [26].
The Applicant was then taken to earlier paragraphs in his statutory declaration, which revealed significant inconsistencies in his story relating to possession of Tramadol:
“8. It was in November 2013 when I started working with a painter…. At the time he was painting an old house on Great Western Highway near merrylands.
9. One day while at work I was asked to paint the roof of one of the rooms… While painting the roof, I was standing on a ladder right next to the door. My boss… was working in the other room and he came to tell me something when he pushed the door open, I fell down from the top of the ladder and severely injured my back.
10. On the same day, I went to medical centre at Merrylands near the police station and was prescribed with 200mg Tramadol tablets for 3 repeats by the GP
11. I took Tramadol for around 4 months which helped me to relieve my pain, but after taking it for around 4 months, it no longer worked.”[29]
[29] Ibid, paragraphs [8] to [11].
This clear inconsistency was put to the Applicant: specifically, that his statutory declaration says he took Tramadol for four months in or about November 2013 and then stopped using that drug because “it no longer worked.” Yet, in March 2018, the Applicant was charged with being in possession of eight Tramadol tablets suspected of being stolen, for which he was eventually convicted in May 2018. The Applicant had no convincing explanation for this discrepancy and simply said that he “can’t recall why [he] had the Tramadol in his pocket in March 2018.”
The Applicant was then taken to the circumstances of his most recent offending in 2018. First, he was referred to his conviction for “Never licensed person drive vehicle on road” offence. The circumstances of the offence, according to the Applicant, appear at paragraph 27 of his statutory declaration,[30] where the Applicant says:
“[27]. I was driving that day because… my housemate at Edgecliff had severe Neck and Back pain. He requested for me to drive because he was in severe pain. He told me that he needed to see the doctor urgently so without thinking much I accepted to help him and start driving his car. He gave me the directions the whole way as I did not know where his doctor was. His doctor was close to casino and he told me that we are going to park at the casino as the parking was free for [the co-accused]. He told me that he is a member and we will park in the casino car park and walk to his doctor. Just before entering the casino we wre [sic] stopped by police and I was later charged with driving unlicensed. On that day I was actually swab tested by police and the result came negative, which is why I was not charged with driving under the influence. I wa slater [sic] convicted and disqualified for three months.”
[30] Exhibit 1, Document 2, Statutory Declaration of Athe Applicant, declared on 24 January 2019, paragraph [27].
To my mind, this evidence verges on the absurd over and above its serious lack of credibility. The Applicant seeks to convince a decision-maker that his friend’s doctor is located at a clinic close to “the casino” in circumstances where no actual address is provided for that clinic. We are told they parked in the casino car park because his friend “is a member”. There is no evidence from the asserted friend to tell us about his “severe neck and back pain” that caused the Applicant to commit this offence. There is no evidence from the asserted friend demonstrating his membership of any casino or the basis upon which that friend says he has the right to park at the casino. Yet again, the Applicant lays the blame for his offending at the feet of others, who, due to their apparent circumstances of infirmity, have caused the Applicant to commit an offence.
The relevant circumstances of the offence as recorded by New South Wales police provide a much more credible explanation to what the likely circumstances of the offending actually were:
“About 8:15 pm on Friday the 25th of May 2018 police were patrolling Edward Street, Pyrmont when they observed a Black Holden Captiva bearing NSW registration plates…traveling northbound.
Police conducted checks on the vehicles registration which revealed certain information to police and subsequently signalled for the vehicle to stop on Edward Street, at the entrance to The Star Casino.
Police approached the vehicle and observed the accused, [the Applicant], seated in the drivers seat and the co-accused… seated in the front passenger seat. Police requested [the Applicant] produce a license to which he was unable to do so, producing a NSW Photo Card. Checks on [the Applicant] reveal that he never held a license within Australia and had been previously charged as such on the 11th March, 2014. Further checks revealed certain intelligence to police and whilst speaking to the accused police observed him to be nervous, fidgeting and unsettled.”[31]
[31] Exhibit 2, s501 G Documents, G2, pages 33-34.
Interestingly, there was no explanation or protestation from either the Applicant or the co-accused, about any requirement to attend a doctor’s surgery, nor was there any explanation by the co-accused to police about the severe neck and back pain that had caused the Applicant to unlawfully drive a motor vehicle. One is left with the inescapable conclusion that the story of the friend’s apparent infirmity is one that has been created for explaining and/or ameliorating his offending history for the purposes of this hearing. This evidence goes nowhere.
The Applicant was then cross-examined about the circumstances in which he came to be in possession of 8 prescription stickers for “Fentanyl 100mcg – 5 patches” and how or why each prescription was issued by a variety of different health professionals in different names. The Applicant had nothing to say in terms of any convincing explanation as to how or why he was in possession of 8 prescription stickers for Fentanyl. The highest his evidence went to was that he had “…become addicted to these patches…” and that he “…wasn’t happy with being addicted to these patches…”.
It seems the police had more significant misgivings and, accordingly, organised the execution of a search warrant over the Edgecliff premises several days later:
“On Tuesday the 29th of May, 2018 police attached to the Sydney City Proactive Crime Team applied for and were granted search warrant numbers … This warrant authorised police entry and search powers for [the Edgecliff property] relating to an investigation into the supply of the prohibited drug, Fentanyl, from the premises.
…
Within the room of [the Applicant] police located 5 prescription stickers in the name of [the Applicant]for Durogesic 100mcg (Fentanyl) patches inside his wallet and a further 6 stickers inside a suitcase.
Also located within the suitcase was red & black pouch. Inside the pouch was a Commonwealth Bank Mastercard and Malaysian ID card in the name of…. [the Applicant] later advised police he had located the items within his unit complex approximately 2 months prior and at no stage made any attempts to locate the owner nor take the items to a police station.
…
At 10:07am police executed search warrant … in relation to the Black Holden Captiva…located in vehicle were numerous pharmacy receipts and documentation in relation to obtaining Durogesic 100mcg (Fentanyl) in the name of [the Applicant]. At 10:27am the search warrant concluded.
[the Applicant] participated in electronically recorded interview where he made full admissions of the offences. [the Applicant] informed Police he attended multiple doctors within days requesting new prescriptions for Fentanyl. [the Applicant] also stated he works in construction as a labourer with no current injuries. Subsequently [the Applicant] made admissions of obtaining the prohibited drug under false representation.”[32]
[32] Ibid, pages 35-36.
Pastor P’s second statement dated 22 January 2019 is notably devoid of much, if any, commentary about the Applicant’s earlier (i.e. pre-2014) devotion to the church and the Christian faith. Its focus is more prescriptive about the Applicant’s current visa situation rather than descriptive of the apparent benefits and advantages arising from his conversion from one faith to another.
The reasons for the change in tone between Pastor P’s two statements became clear in cross-examination. He was asked whether he had seen the Applicant since 2012. He responded “Yes.” He then told the hearing of his penchant for keeping very particular and detailed records of each and every prospective and actual worshipper who attends the church. Pastor P said he had recorded the Applicant as “Number 461” and that he attended the church in “September, October (twice), November and December, 2013.” He said the last time the Applicant attended the church was on 13 June 2014. Thereafter, Pastor P said he had “lost track” of the Applicant and has not seen him at all since mid-2014. He said the Applicant “…wouldn’t pick up the phone when I tried to phone him.”
Pastor P seems a good and sincere man, one who genuinely believes in the curative effects of his chosen faith. The difficulty with his evidence is that next to nothing he observed and recorded about the apparently positive aspects of the Applicant’s adoption of the Christian faith can be found in the Applicant’s conduct giving rise to his offending history from about mid-2014 until mid-2018. Indeed, the Applicant’s period of offending in this country commences at virtually the exact point he ceased attending Pastor P’s church. One wonders about the truthfulness of the Applicant’s pronouncements to Pastor P about the wondrous and curative effects he apparently experienced while attending the church. One also wonders about why these curative elements had no effect in preventing the Applicant’s quite serious fraudulent and unlawful conduct involving (1) the inducement of medical professionals to dispense false prescriptions to him and (2) obtaining a prohibited drug from an authorised person with intent to deceive.
As I understood his evidence, the Applicant was propounding themes of (1) having found some sort of alternate community in Australia via his apparent conversion to a mainstream faith and (2) feeling a sense of belonging to that alternate community and thus to this country via his involvement in the Church. I have very serious misgivings about this evidence on two primary grounds. First, whatever good things he says he learnt from his involvement with the church in the period to mid-2014 did nothing to prevent his offending or to give him pause to develop any genuine insight into his unlawful conduct across its four year duration. Second, he said nothing to Ms Goldberg about any feelings of “family” or “community” arising from his apparent conversion. Ms Goldberg noted “In Australia he took his baptism and continued his contact with Christianity, presumably seeking to regain a more positive sense of himself as belonging to a different culture and beliefs system.”[55]
[55] Ibid, Document 22, Report of Ms Greta Goldberg, page 7, heading 3.
Ultimately, Ms Goldberg found – based on what the Applicant told her – that he had “…lost all his previous social supports and connections, only feeling a trusting bond with his mother in Iran.” [56]
The Applicant’s work history in Australia
[56] Ibid, page 5, paragraph [1.2].
The Applicant has a work history, of sorts. He has been in this country for something like six and a half years. He has spent more than three and a half years in immigration detention. According to his written evidence, he has:
“50. …worked for roughly around 9 months on full time basis in [type of work redacted] in Granville. In my day to day job, I washed cars, dried and detailed them for Australian’s [sic] from all walks of life;
51. I also worked for some time with a painter and was injured on the job;
52. Soon after I spent around 2 an [sic] half years in detention and made no contribution to the community or myself;
53. I was released in late 2016 on a Bridging Visa E into the community and started working in [a] Factory in Pendle Hills on full time basis…
54. Thus since arriving to [sic] Australia in 2012, I have made close to around 2 years of contribution through employment, have [sic] spent around 3 and half years in immigration detention…”[57]
[57] Exhibit 1, Document 2, Statutory Declaration of The Applicant, declared on 24 January 2019, paragraphs [50]-[54] (inclusive).
It seems undeniable that at least half, probably more, of his life in this country has been dominated by his time in immigration detention and, when not there, in conducting himself in an unlawful manner resulting in his commission of serious offences. I am thus of the view that it is consistent with paragraph 11.3(1) of the Direction to find that the Australian community would expect that a non-citizen who has a history of the serious offending of this Applicant, will not be given the benefit of being able to remain in Australia.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of a refusal to grant the visa he now seeks. I accordingly find that this Primary Consideration C weighs strongly in favour of refusing the visa.
Other Considerations
I turn now to the Other Considerations listed at paragraph 12 of the Direction.[58] I have considered each of the four stipulated sub-paragraphs (a), (b), (c), and (d). They comprise:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
[58] Direction No 65, paragraph 12(1).
The parties are of one mind with regard to Other Considerations (b), (c) and (d). It is contended on behalf of the Applicant that “We agree with the respondent’s contention…that the considerations in paragraphs (b) (c) (d) are not relevant to the Applicant’s circumstances.”[59] In parallel, “The Respondent contends that there is no evidence that the other considerations in paragraphs (b), (c) and (d) are relevant to the Applicant’s circumstances.”[60]
[59] Exhibit 1, Document 1, Submission Filed on Behalf of the Applicant, page 29, paragraph [88].
[60] Ibid, Document 26, Respondent’s SFIC, page 12, paragraph [80].
Accordingly, I allocate no weight to Other Considerations (b), (c) and (d).
With reference to Other Consideration (a) – International non-refoulement obligations – there also seems to be a level of unanimity between the parties. It is contended on behalf of the Applicant that “We agree with the respondent’s contention that the applicant was not found to be a person to whom Australia has protection obligations under section 36 of the Migration Act.”[61] The Respondent contends that “…while the Applicant claims that he ‘cannot go back to Iran’ … the Respondent submits that there is no evidence that non-refoulement obligations are owed to the Applicant.”
[61] Ibid, Document 1, Submission Filed on Behalf of the Applicant, page 30, paragraph [89].
The basis of the Applicant’s position on non-refoulement is to suggest that the scope of non-refoulement obligations under human rights treaties is somehow broader than that contained in international refugee conventions. I have misgivings about this contention and I note that the Applicant has previously made a request for a protection visa which was duly considered but rejected by a delegate of the Respondent on 4 April 2013. The decision to refuse the protection visa involved a finding that (1) the Applicant did not have a well-founded fear of persecution in Iran and (2) there were no substantial grounds for believing that there is a real risk that he would suffer significant harm if removed to Iran.
This delegate’s decision to refuse the protection visa was affirmed by the Refugee Review Tribunal on 6 November 2013. I make specific reference to the findings of the delegate as summarised by the Respondent[62] and, based on those summarised findings by the delegate, I am of the view that it is not necessary for this Tribunal to further consider the Applicant’s non-refoulement claims. This is because (1) those claims have been rejected by a delegate of the Minister, and that rejection decision has been affirmed by the Refugee Review Tribunal, and (2) the Applicant has not advanced any new non-refoulement claims in the context of this application.
[62] Ibid, Document 26, Respondent’s SFIC, page 12, paragraph [83(a),(b),(c),(d),(e) and (f)]
While I do not consider that any further consideration of those claims is necessary, to the extent the Applicant may now propound any relevance behind his non-refoulement claims, I am of the view that it is open to this Tribunal to make a finding on the evidence before it that no such non-refoulement obligations are owed to the Applicant on two primary grounds:
(i)Based on the delegate’s abovementioned decision made on 4 April 2013 to reject the Applicant’s visa application; and
(ii)The affirmation of the delegate’s decision by the Refugee Review Tribunal on 6 November 2013.
I therefore agree with the Respondent’s contention about this Other Consideration (a). Even though the Applicant asserts he is at risk of harm in Iran, there is insufficient or no evidence – beyond that already considered and rejected by two previous decision-makers - to substantiate that claim. The circumstances of this case and the nature of his offending history lead me to the conclusion that the Primary Considerations (A and C) outweigh any assertion by the Applicant that this country owes him non-refoulement obligations.
Having regard to the totality of the abovementioned evidence I consider this Other Consideration (a) is of neutral weight.
CONCLUSION
The Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501(1) of the Act to refuse the visa, I have had regard to the considerations referred to in Direction No. 65. Primary Considerations A and C weigh strongly in favour of refusal. I have assigned no weight to Primary Consideration B, nor to any of the Other Considerations.
Having regard to the totality of the evidence, I am of the view that the Tribunal should exercise the discretion in section 501(1) of the Act to refuse to grant the visa.
DECISION
For the reasons outlined above, I affirm the decision under review.
I certify that the preceding 204 (two hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.....................[SGD]................................
Associate
Dated: 11 February 2019
Date of hearing: Wednesday 30 January 2019 Advocate for the Applicant: Ziaullah Zarifi, Ghan Migration Solicitors for the Respondent: Tal Aviram, Clayton Utz
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