YFLK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2218

YFLK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2218 (26 July 2023)
Division:GENERAL DIVISION
File Number: 2022/4722
Re:YFLK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 July 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the Respondent dated 26 May 2022 and substitutes it with a decision to not exercise the power to refuse to grant the Safe Haven Enterprise (Class XE) Visa under section 501(1) of the Migration Act 1958 (Cth).
..................................[SGD].................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – refusal of a Safe Haven Enterprise (Class XE) Subclass 790 visa pursuant s 501(1) of the Migration Act 1958(Cth)- where the Applicant does not pass the character test- whether discretion to refuse the visa under s 501(1) of the Migration Act 1958 (Cth) should be exercised – where Applicant has a significant criminal history in Australia – indefinite detention as a legal consequence of the Tribunal’s decision considered – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Walker v Minister for Home Affairs (2020) 171 ALD 3
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 July 2023
INTRODUCTION

YFLK (‘the Applicant’) is a 36-year-old man, born in Iran in March 1987. His initial date of arrival was June 2023. He has resided in Australia on a permanent basis since he arrived.
In March 2017, the Applicant applied for a Safe Haven Enterprise (Class XE) visa (‘SHEV’). On 10 May 2017, he was granted a complementary Bridging Visa E. On 26 May 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) made a decision exercising the power pursuant to s 501(1) of the Migration Act1958 (Cth) (‘the Act’) to refuse to grant the Applicant the requested visa. This remittal hearing proceeded before me on 7 and 8 June 2023. It received both written and oral evidence. The written evidence was reduced to an agreed Exhibit List which was attached to these Reasons and marked ‘Annexure A’.[1] Oral evidence was received from the Applicant, his respective friends, Messrs HZ and PF.
[1] Transcript, p 2, lines 37-47; p 3, lines 1-8; p 63, lines 1-30.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act empowers the Minister (or the Tribunal on review) to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the ‘character test’ as defined in s 501(6) of the Act.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) of the Act sets out the circumstances in which a person is taken to have a ‘substantial criminal record’, which relevantly incudes being sentenced to a term of imprisonment of 12 months or more.
The issues in the present case are:
·whether the Applicant passes the character test; and if not
·whether I should exercise the power conferred by s 501(1) of the Act to refuse to grant the SHEV.
Does the Applicant pass the character test?
The parties are in agreement that the Applicant does not pass the character test.[2] I agree and will make that finding accordingly.
[2] Exhibit 5, p 5, [36]; Transcript, p 7, lines 25-34; Exhibit 3, p 6, [13];
The issue remaining before the Tribunal is whether to exercise the power conferred by s 501(1) of the Act to refuse to grant the visa.
Should the visa application be refused under s 501(1) of the Act?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’) is applicable.
For the purposes of deciding whether to refuse the visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia;
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In the Statement of Facts, Issues and Contentions (‘SFIC’) filed on the Applicant’s behalf,[3] there is a very helpful tabulated summary of the Applicant’s offending history which appears as Schedule A.[4] In short compass, the Applicant has convictions for the commission of 26 offences that, in terms of sentencing episodes, were dealt with during the period August 2016 to October 2018.
[3] Exhibit 5.
[4] Ibid, pp 18-19.
The nature and seriousness of the Applicant’s conduct to date
The Applicant was in full-time custody during the period October 2018 to February 2020. No custodial terms had been imposed on him prior to October 2018. For his offending, the Applicant has received a virtually full range of sentencing modalities ranging from fines, bonds, suspended sentences as well as disqualification of his driving privileges. Sentencing courts have felt compelled to re-sentence him due to the terms of previously-entered or imposed bonds and/or suspended sentences.
Similarly, his offending modalities are multi-faceted ranging from offences of larceny, driving offences, drug-related offences and a singular offence against the person. He committed 10 offences of larceny between December 2017 and September 2018 and received an aggregate custodial term of 15 months’ imprisonment with nine months of that to be served on a non-parole basis. He also committed one offence of ‘participate criminal group contribute criminal activity’ during the same period and received the same sentence. These two sentences grounded the Respondent’s finding that he did not pass the character test.
Further larceny and goods in custody offences were subsequently committed for which he was sentenced in January 2018 and in respect of which two sentences of six months’ imprisonment were imposed consequent upon his breach of a previously imposed bond in lieu of actual time in custody. There followed his commission of a drug possession offence which resulted in the imposition of a further bond. He again breached that bond, which resulted in the imposition of a further custodial term of six months’ imprisonment.
There followed the commission of a further larceny offence that saw the imposition of a further custodial term of six months. The offending history then diverts to driving offences involving one offence of driving with a suspended licence (attracting a $500 fine) and one conviction for exceeding the speed limit by more than 45 km/h (punished by way of a $1,500 fine and 6 month disqualification from driving).
In May 2018 he was convicted on one count of common assault for which he was made the subject of a three year community correction order running from October 2018 to October 2021. As noted by the Applicant’s representative, the circumstances of this common assault conviction are highly unusual and they are summarised in the Applicant’s first statement now before the Tribunal (made on 11 July 2022):
‘In relation to my conviction for common assault, I am very sorry that I hurt the ambulance officer who was trying to help me when I was at one of my lowest points. My memory from this event is not good because I was high at the time, however I remember I was so tired of my life and using drugs that I tried to my hang myself. My neighbours saw me and they called emergency services. When the ambulance arrived, I thought one of the officers was trying to stab me when I felt their scissors against my stomach. I don’t remember what happened after that, but I am very sorry that I hurt the officer while they were trying to help me.’[5]
[5] Exhibit 6, p 6, [25].
The Applicant pleaded guilty to this offence of common assault. His account of the incident remains consistent with what he said about it in a statement made as far back as March 2020. I agree with the contention put on behalf of the Applicant: something amounting to little more than a drug-induced contretemps with a well-intended intervention by an ambulance officer is not indicative of a person having a general propensity towards violence. I also agree with the further contention put on behalf of the Applicant: the element of violence in this conviction for common assault is an outlier in the context of the totality of the Applicant’s offending which nowhere else includes an element of physical violence.
Each of (1) the bizarre nature of the common assault conviction in relation to the ambulance officer; (2) the Applicant’s offences against the property of others (larceny/goods in custody); (3) irresponsible driving offences; (4) possession of drug offences; and (5) a failure to appear or to otherwise meet the terms of a lawfully imposed instrument (e.g a bond or suspended sentence), are best understood on the basis that all of his offending occurred in the context of his addiction to illicit drugs. This was apparent in the mind of at least one judicial sentencing officer who observed that ‘…it’s clear that drugs have got the better of you [the Applicant] since you’ve been in Australia.’[6]
[6] Exhibit 1, p 49, lines 9-10.
I will now turn to an Application of the relevant paragraph appearing at 8.1.1(1) of the Direction to assess the nature and seriousness of the Applicant’s unlawful conduct in this country. Despite its bizarre nature, the Applicant’s abovementioned conviction (on his own plea) of common assault against the ambulance officer is, in a literal but barely other sense, an offence of violence. As such, it attracts the operative effect of the chapeau to paragraph 8.1.1(1)(a) of the Direction and must be found to be very serious.[7] There is no suggestion in the offending history that the Applicant has committed any crime of violence against a woman or child[8] or that he has committed acts of family violence, reported and not convicted or convicted.[9]
[7] Paragraph 8.1.1(1)(a)(i) of the Direction.
[8] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[9] Paragraph 8.1.1(1)(a)(iii) of the Direction.
None of his offending has caused another person to become involved in a forced marriage[10] nor has it involved the commission of any offence rendering him responsible for conduct on which a finding can be made that he does not pass an aspect of the character test that may be dependent on the decision maker’s opinion.[11] I am cautious about attributing the appellation of ‘government representative or official’ to an ambulance officer. Be that as it may, I cautiously find that the abovementioned common assault offence against the ambulance officer was perpetrated against a ‘government official in the performance of their duties’. As such, it attracts the auspices of the chapeau appearing at 8.1.1(b) of the Direction such that his offending must be found to be ‘serious’.
[10] Paragraph 8.1.1(1)(b)(i) of the Direction.
[11] Paragraph 8.1.1(1)(b)(iii) of the Direction.
The Applicant has no convictions for ‘…a crime committed while…in immigration detention…’[12] There are two relatively unremarkable recorded incidents involving the Applicant being found with contraband while in prison or immigration detention. In June 2019 he was found to be in possession of 5.2 grams of tobacco and paraphernalia associated with tobacco smoking. In May 2020 he was found to be in possession of buprenorphine which is often administered as part of an opioid substitution therapy program. The Applicant makes it clear in his abovementioned statement of 11 July 2022 that his taking of buprenorphine was for the specific purpose of weaning himself off illicit drugs. Neither of these incidents (which occurred in prison) attract the auspices of paragraph 8.1.1(1)(b)(iv) of the Direction. Otherwise, the Applicant has been of good behaviour while in immigration detention with no incidents and no conviction(s) resulting from his time there from February 2020 until his return to the community pursuant to the Minister’s Residence Determination on 27 March 2023.
[12] Paragraph 8.1.1(1)(b)(iv) of the Direction.
The Direction then compels[13] an examination of the sentence(s) imposed by the courts for the crimes of a non-citizen in terms of assessing the nature and seriousness of their offending. I am precluded from taking into account the sentence imposed on the Applicant for his common assault conviction involving the ambulance officer. The totality of fines imposed for his offending does not exceed $2000. The position is different in terms of the totality of custodial time imposed upon him. For an offending history that runs (in sentencing terms) from October 2018 to July 2019,[14] sentencing courts have imposed cumulative custodial terms in the sum of 76 months. The sheer quantity of custodial time must surely point to the (at least) serious nature of the Applicant’s offending which could readily and otherwise be construed as very serious.[15]
[13] Paragraph 8.1.1(1)(c) of the Direction.
[14] Taking into account the dismissal of a drug possession charge in August 2016.
[15] Paragraph 8.1.1(1)(c) of the Direction.
The Direction then requires an assessment of both the frequency of the offending and whether it betrays any increasing trend of seriousness.[16] The sentencing history runs from October 2018 until July 2019. It deals with the commission of 26 offences. The commission of such a volume of offences across less than a year of offending must surely constitute frequent offending. I so find.
[16] Paragraph 8.1.1(1)(d) of the Direction.
In terms of any trend of increasing seriousness, the first three offences involved (1) ‘disqualified driving’; (2) ‘police pursuit’, ‘not stop’, ‘drive dangerously’ (first offence); and (3) the abovementioned ‘common assault’ offence against the ambulance officer. The offending then devolved into larceny-type offences together with a couple of traffic offences. At the hearing the Applicant’s representative suggested that many of these larceny offences involved the Applicant ‘…with his ex-girlfriend and others the Applicant primarily stole baby formula for re-sale to fund his drug addiction.’[17]
[17] Transcript, p 76, lines 24-26.
It is, with respect, trite to suggest that relative innocuousness in a person’s offending should somehow point to a degradation of the extent of its seriousness. Stealing is stealing. The fact that it involved stealing of baby formula as opposed to something more valuable is not to the point. I could be minded to accept that an isolated act of stealing baby formula could be found to be minor. However, such is the plethora of the Applicant’s unlawfully taking the property of others in his short offending history that he is not able to escape a finding of an inherent level of increasing seriousness in the pattern of his offending.

I therefore conclude that the Applicant’s offending has been frequent and that it does betray a trend of increasing seriousness across its less than 12 month period. This paragraph of the Direction[18] militates in favour of a finding that the totality of his offending has been at least serious and even very serious.
[18] Paragraph 8.1.1(1)(d) of the Direction.
The Direction then looks for any cumulative effect(s) redolent in the Applicant’s pattern of repeated offending. It is not difficult to identify those effects. First, he has three traffic convictions which are indicative of a person who has failed to observe the laws and regulations governing the ownership, management and control of a motor vehicle on Australian carriageways. Driving a vehicle dangerously while being pursued by the police is conduct that exposes the perpetrator, the pursuing police and other road users to danger and risk. Second, while it may be said the Applicant’s moral compass – in terms of respecting the property rights of others became skewed as a result of his addiction to illicit drugs, it does not absolve him from a finding that his lack of respect for other people’s property is indeed a cumulative effect of his offending. Put another way, he allowed himself to become convinced that wilfully depriving of someone else of baby formula was something either worth doing or something not so bad to do for the purposes of satiating his addiction to illicit drugs.
Third, the Applicant’s offending history is indicative of a person who has failed to understand and respect the lawful authority represented by an instrument compelling him to do or refrain from doing something. He has breached bonds and the terms of a suspended sentence which saw his previously non-incarceration punishments called-up and converted to not-insignificant custodial terms. Fourth, his offending has – due to the intensity of the offending pattern across such a relatively short offending span – consumed more than its fair share of the community’s policing and judicial sentencing resources. It has also resulted in other people being deprived of their goods which they have otherwise lawfully acquired and are entitled to enjoy without interference of this Applicant by virtue of his offending conduct.
The abovementioned cumulative effects of his offending do militate in favour of a finding that the Applicant offending has been at least of a serious, more likely very serious nature.
The Applicant has never departed Australia since his arrival in June 2013. There has therefore been no opportunity for him to mislead the Department[19] by, for example, not disclosing any past offending in an incoming passenger card. Similarly, I am not aware of the material disclosing any other instance of either deliberate concealment of information or the provision of false or misleading information to the Department. This particular sub-paragraph is not relevant.
[19] Paragraph 8.1.1(1)(f) of the Direction.
To the best of my understanding of the material, there is no reference to the provision of any formal written warning to the Applicant about the consequences of any further offending upon his visa status to remain here.[20] This particular paragraph of the Direction is not relevant. Likewise, there is nothing before the Tribunal to indicate the Applicant has committed an offence in another country that would be classified as an offence in Australia.[21] This particular sub-paragraph is not relevant.
[20] Paragraph 8.1.1(1)(g) of the Direction.
[21] Paragraph 8.1.1(1)(h) of the Direction.
Having carefully considered all the evidence before it pertaining to the relevant factors in paragraph 8.1.1(1), the Tribunal finds that the Applicant’s conduct in Australia to date has been at least serious and, possibly, very serious. The nature and seriousness of the Applicant’s offending history in this country weighs in favour of exercising the power pursuant to s 501(1) of the Act to refuse the grant of the visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following three factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
All offending is, in one way or another, harmful to either individual victims or the community whose resources are engaged in dealing with it. Some offending is so serious and so abhorrent that any re-commission of it, together with the harm it would cause, can be found to be so serious such as to be unacceptable to the Australian community. I do not think this Applicant’s pattern of offending is such as to render him an unacceptable risk to the Australian community in the future.
It suffices to say that traffic offending has the potential to harm other road users. It likewise suffices to say that depravation of another of their property does result in discernible loss and damage to the owner of that property. A refusal to meet the requirements of lawful authority consumes police and other resources in dealing with such conduct. It can be safely found that the Applicant’s re-commission of such unremarkable unlawful conduct will actually or potentially harm others. But there is neither a cumulative nature to his offending or an offending singularity in this Applicant’s history suggestive of such future offending being unacceptable to the Australian community.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has identified and propounded several factors which are said to speak to the Applicant’s recidivist risk. I will identify and explain those factors but will then test their veracity against the evidence before the Tribunal. At the conclusion of that process, I will make findings about the Applicant’s recidivist risk and then, finally, I will endeavour to arrive at a specific finding about the Applicant’s actual level of recidivist risk.
The Residence Determination made on 27 March 2023
There is one unique feature of this case which must be canvased, understood and addressed which speaks to the Applicant’s recidivist risk. As I have alluded to earlier, the Minister did, on 27 March 2023, make a Residence Determination in respect of this Applicant pursuant to s 197AB of the Act. For practical purposes, this means the Applicant has been permitted to serve his immigration detention while living in the community albeit pursuant to the strict terms and conditions contained in the Determination. It is not clear whether the Determination is suggestive of the Respondent Minister’s assessment of the Applicant as a person who poses a relatively low level of risk to the Australian community.
Sub-division C of Division 7, Part 2 of the Act specifically relates to the detention of unlawful non-citizens and to the grant of a Residence Determination. Section 197AA applies to a person in immigration detention and stipulates that the making of a favourable residence determination remains a form of immigration detention. The following provision, s 197AB, is the operative provision in relation to the making of Residence Determination. It is predicated on the basis that if the Minister considers it within the public interest to do so, the Minister may make a Residence Determination in respect of a non-citizen detainee.
The operative nature of s 197AB is important for present purposes because it mandates a statutory pre-condition such that the making of a favourable Residence Determination involves a commensurately favourable assessment by the Minister that it is in the public interest for the non-citizen detainee to reside in the community, albeit pursuant to the terms and conditions of the Determination.
The following provision is s 197AC of the Act. It effectively establishes the terms and conditions of how the non-citizen is to reside in the community pursuant to a favourable Residence Determination. It facilitates the non-citizen detainee’s residence in the community at a specifically defined location and the circumstances pursuant to which such a determination can be revoked. Such revocation can occur in circumstances where there is a ruling resulting in a scenario where the non-citizen is not longer required to be detained.
Applied to the instant facts, were this Tribunal to not exercise its power to refuse the visa, the issue of whether or not the subject visa is granted would be referred back to the Minister’s delegate with a resulting possibility that the Applicant would be granted the visa originally refused to him. In those circumstances, due to the Applicant no longer being compelled to remain in immigration detention, there would follow a revocation of the residence determination pursuant to s 197AC(4) of the Act because the Applicant would be a person to be ‘released from immigration detention’.
Hovering above this scenario is s 197AD of the Act, which provides that if the Minister considers it in the public interest to do so, the Minister may, at any time, revoke or vary a Residence Determination. That personal and entirely discretionary power of the Minister subsists for the currency of the instant proceeding. It also subsists for the period between a favourable outcome for the Applicant in this proceeding until the time he receives a commensurately favourable outcome from the Department about the grant of the visa he seeks.
The submission put on behalf of the Applicant is that he can have no certainty about whether he will serve his time in immigration detention either in an actual detention facility or, as is currently the case, in the community. The Applicant does not have any knowledge (nor is he entitled to be privy to any such knowledge) about any policy or practice of the Minister insofar as any variation or revocation of the Residence Determination is concerned. No part of this contention is informative about the Applicant’s risk.
In the SFIC filed on behalf of the Applicant, a contention is made about the extent to which this Tribunal should rely on the Residence Determination as evidence of the Applicant’s low recidivist risk:
‘Fourth, the fact the Respondent made the Residence Determination is evidence of the low risk that the Applicant poses to the Australian community. The Respondent may make a determination under s 197AB of the Act only if he thinks it is in the public interest to do so.
The Residence Determination has had a profound effect on the Applicant's future outlook and has only increased his determination to get his life back on track (Statement of the Applicant dated 21 April 2023).’[22]
[22] A5, p 12, [98]-[99].
I have misgivings about this contention. Those misgivings commence with the plain language of the Residence Determination itself. It appears in the material[23] and, for all intents and purposes, actually comprises two documents. The first is a written notification addressed to the Applicant dated 27 March 2023 from the Department to the Applicant advising him of the making of the Residence Determination.[24] This document also contains an ‘Attachment A – Conditions for Community Detainees’. Nowhere in that document is there any reference to the Residence Determination having been made or otherwise predicated on any finding or apprehension about the Applicant’s level of recidivist risk.
[23] A22.
[24] Ibid.
The second document comprises an internal submission duly signed by the Minister on 27 March 2023 confirming the Minister’s recommendation to ‘intervene under section 197AB of the Migration Act 1958 to make a residence determination…’[25] Nowhere in this document is there any reference to the Residence Determination having been made or otherwise predicated on any view or finding by the Department or the Minister about the Applicant’s level of recidivist risk. As I mentioned earlier, s 197AB of the Act facilitates the making of a Residence Determination if the Minister thinks it is within the public interest to do so.
[25] R26.
There is nothing in this second document which says the Residence Determination was made on an assessed level of recidivist risk of this Applicant such that it was in the public interest for him to serve his time in detention in the community. In terms of possibly understanding the ‘public interest’ basis behind the making of the Residence Determination, a more likely explanation is to be found at [15] of the document. It is cast in these terms:
‘The Department is unable to provide specific details regarding the financial implications of managing an individual, either in the community or in detention. The Department notes that the costs will be highly dependent on the individual circumstances, including the level of support required. However, in the 2021-22 financial year, the average cost of managing a person:
·in held detention was $421,674
·in Residence Determination was $59,565
·on a Bridging E visa in the community was $2,585.’[26]
[26] Ibid, p 3, [15].
The cost to the community of a non-citizen residing in immigration detention in the community is 14% of the cost of having that non-citizen reside in an actual immigration detention facility. To my mind, that is the far more likely and rational basis on which the public interest component behind the making of the Residence Determination was made. Ultimately, this question can only be resolved by someone from the Department giving evidence on the point. But that is not necessary for present purposes. Neither of these two documents contain any reference to the Residence Determination having been made or predicated on any finding or perception about the Applicant’s level of recidivist risk. Thus, the Applicant’s submission that the Residence Determination ‘is evidence of the low risk that the Applicant poses to the Australian community’ must fail.
The Respondent’s position regarding any impact of the Residence Determination on recidivist risk is, with respect, less clear. As best as I understood the position, it was sought to be suggested that the Applicant’s time in immigration detention served in the community is somehow a softer or milder version of spending that time in an actual immigration facility. I was not able to understand whether it was being suggested that the Applicant’s service of immigration in the community placed him at a higher recidivist risk than if he were detained in an actual facility. Perhaps this may be understood by having initial reference to the Respondent’s ultimate assessment of the Applicant’s recidivist risk which was put in these terms:
‘…my submission we have both serious conduct by virtue of the sentence imposed, the first point. The second point, the applicant does present an unacceptable risk because his history has revealed and the point inexorably, in my submission – inexorably to an unacceptable risk.’[27]
[27] Transcript, p 123, lines 20-24.
The Respondent’s representative then proceeded to say:
‘The secret species we have here is 197AB for detention so that places this consideration 9.1 in a different light again because the applicant – because of the conditions he has is pretty much able to go about his business subject to certain conditions and – and that leads‑ – ‑’ [28]
[28] Ibid, lines 39-42.
I disagreed with that submission because of the stark reality that the Minister could revoke the determination at any time. There followed this exchange between me and the Respondent’s representative:
‘MR D’ASSUMPCAO: Now it is true, as my learned friend says, as a matter of possibility true, not probability. The possibility that the applicant – the minister could revoke that determination, he has the power to do so, but the speculation and conjecture, therefore, an impermissible finding of fact to say that – ‑ ‑
SENIOR MEMBER: Well, with respect, I’m not sure it’s not – I’m not sure it’s all that impermissible. I’m sure you’re aware of the comments of Justice Jagot in [BNGP] where her Honour made it very clear that Governments change, Ministers change, circumstances change and Ministers change their minds and it’s not beyond the realm of possibility that there could be a different minister who has a completely different view about the extent to which people should be given resident’s determinations to go back into the community and revoke that determination. So it is within the realms of possibility that the applicant’s circumstances could change, or be changed for him.’[29]
[29] Ibid, p 124, lines 21-35.
Albeit in the context of a different component of the Direction, the Respondent’s representative made the following contention about how the Tribunal should approach the fact of the Applicant serving his time in immigration detention in the community. I disagreed with the contention and such disagreement can be seen in the following exchange between me and the Respondent’s representative:
‘MR d’ASSUMPCAO: That’s the first point. And in assessing this consideration here about whether the applicant – how – how you should weigh the consideration in the circumstances of a 197AB determination, the probative evidence is, in my – on the facts of this case lessens the weight which would otherwise be given in the applicant’s favour to this point because of the liberty given in the community.
MR d’ASSUMPCAO: It must be relevant, in my submission, that the conditions of what is colloquially described as held detention in a detention centre, markedly different from the conditions of his current immigration detention and if he were to live out his days, for the sake of the argument, sir, in community detention reform, it’s a very different scenario if he were to live out his days in a detention centre where he has access to the community.
SENIOR MEMBER: I’ve got misgivings about that contention. With respect, I really do. I can’t – ‑ ‑
MR d’ASSUMPCAO: Sir, it’s a delicate case – ‑ ‑
SENIOR MEMBER: No, no. I can’t impact someone’s life – now you’ve put it – you posited it on the basis of live out his days. This man is 36.
MR d’ASSUMPCAO: Sir – ‑ ‑
SENIOR MEMBER: He could live for another 60 years in – he could live for another 60 years, or at least 50 years. … you can’t approach this decision-making process …on the basis that, oh well, even if he doesn’t get this visa it’s not so bad because he’s in the community anyway and he’s deprived of all of these things subject to these conditions. …if your client, with respect, and I’m just theorising. If your client wanted to make his life comfortable in the community, well then take away the conditions. And let him work and let him get about. And make it subject to a strict regime of drug testing. Make it subject to a strict regime of parole-type reporting. I’m not telling anyone at any time how to do their business. I’m just theorising with you, as you are with me. But please, I can’t take this decision-making task on the basis, oh well it’s all not too bad for him. We’ll leave him in the community as it is and just leave things as they are. This man is either relieved of being in immigration detention, or he is not. That’s got to be the ultimate basis of how I approach this task. There’s no halfway. You can’t say, “Well, he’s kind of in detention, but he’s kind of not because he can always pop down the road to the 7-Eleven and buy some cigarettes.” Who knows. Or people can visit him at home. You can’t do that. He’s either in it, it being immigration detention, or he’s not.’[30]
[30] Transcript, p 125, lines 29-46; p 126, lines 1-24.
Remorse and assumption of responsibility

The Applicant has come to the realisation of the unsustainability behind the way in which he has conducted himself while previously part of the Australian community. He has come to understand and acknowledge that maintaining a pattern of unresolved drug addiction and consequential offending to feed that addiction has led him to the circumstances he now finds himself. It seems clear that he does not enjoy finding himself in this type of difficulty involving, as it does, an existential threat to his visa status to remain here. An indicator of his intention to avoid or minimise the consequences of legal trouble can be seen in the consistent way in which he readily entered his own pleas of guilty to criminal charges proferred against him.
I think it is very probable that were the Applicant to enter the equivalent of a simple plea to this visa matter, then receive some form of punishment for it as a means of having his visa status restored to him, then such a ‘plea’ would be readily forthcoming. I am satisfied that he has come to the shocking realisation that he has not been able to deal with and dispatch the difficulty presented by this current visa matter in the same way that he conveniently dealt with convictions appearing in his criminal history. He acknowledges a relapse into illicit drug abuse when taking medication for physical difficulties resulting from a work accident. That relapse cascaded into social isolation, homelessness, associating with negative peer groups, unresolved and out-of-control illicit substance abuse and, ultimately, to an offending history that has imperilled his capacity to remain in this country.
Rehabilitation
I approach with caution the global submission put on behalf of the Respondent such that negative trigger points or times of stricture cause the Applicant to devolve into a sense of hopelessness and to consequential illicit drug abuse as a form of relief. This is not a case where a work accident per se caused a non-citizen to fall into an unfortunate pattern of illicit drug abuse and serious offending. This is a case where a non-citizen was gainfully employed in this country, suffered a work accident and in the course of his rehabilitation from that work injury, he took legitimate medication to relieve pain and other physical difficulties arising from those work-related injuries. It was the pain-relief medication that led to the Applicant’s devolution into illicit substance abuse, not the work accident.
Such substances have been absent from his life for the last three years during his time in prison and then immigration detention and now via his albeit restricted return to the community – via the Residence Determination – in Sydney. There was the adverse outcome that he had to confront consequent upon his unsuccessful application to this Tribunal in August 2022. The Applicant dealt with that adverse outcome by propounding an appeal for Judicial Review to the Federal Court in which he succeeded. He is now dealing with propounding the instant remitted application before this Tribunal. Nowhere during this period of three-four years is there any suggestion that these difficulties and challenges have caused a relapse into illicit drug abuse.
The Applicant has provided evidence of his historical association with illicit drugs from as long ago as when he was a younger man in Iran. There is little or no evidence to suggest he did not remain drug-free after his arrival in Australia in 2013 for a period of about five years at which time he did relapse. It would be unsafe to find that the Applicant’s history with illicit drugs is one that can be characterised as consistent or chronic. His involvement with illicit drugs has been periodic which has seen him partake in such substances for two periods of about two years each.
Neither side cavils with a finding that the only time the Applicant has received proper treatment for his illicit drug issues occurred when he was placed in immigration detention in 2020. The approximate three year period since then has seen him participate in an opioid substitution therapy program which saw him placed on buprenorphine as a means of weaning himself off illicit drugs. The IHMS records refer to his involvement with drug and alcohol abuse clinicians. This engagement commenced as far back as February 2020 and ran until he left immigration detention. That rehabilitative engagement has seen the Applicant engage with a case worker and a general medical practitioner following his return to the community.
There is evidence of a consistent engagement with a drug and alcohol team during the Applicant’s time in immigration detention culminating in his placement on a methadone treatment plan as part of the opioid substitution therapy program in June 2020. There has never been an attempt by the Applicant to conceal his difficulties with illicit drugs during his course of rehabilitative treatment. He has not been lillywhite during rehabilitative therapy. There have been instances where he has continued to use illicit substances such as in September 2020 where he openly reports of partaking in methamphetamine. That said, he appears to have overcome any urge to return to illicit drugs by about March/April 2021 when the relevant IHMS records indicate he was denying any illicit substance abuse, that he was stable on his then dosage of methadone and that he otherwise wished to continue with his therapeutic treatment.
There is evidence of a relapse in September/October 2021. But since that time, there is no evidence of any involvement by this Applicant in illicit drug use and, further, the evidence points to a reduction in the dosage of the buprenorphine opioid substitute from weekly injections to monthly injections. He has maintained an involvement with Narcotics Anonymous since early 2022.[31] He is also supported by a case worker who oversees his continued involvement in a program designed to cause him to abstain from illicit drug use. Indeed, one of the conditions of the residence determination is that the Applicant ‘…must contact your Caseworker or Carer as soon as possible.’[32]
[31] See A6, p 6, [32]-[34].
[32] A22.
The further point to note is that during his time in the community pursuant to the Residence Determination, there has been no relapse or other involvement with illicit drugs. Sourcing and consuming such substances in the closed environs of prison and immigration detention is one thing. Doing so in the community – albeit under the auspices of the Residence Determination – is another. While the terms of the Residence Determination might say ‘you must not purchase or use illicit substances such as drugs’[33], it must surely be accepted that it is a far simpler proposition for drugs to be provided to the Applicant at an unsupervised residence in the community compared to smuggling contraband into a prison or detention facility. Even so, there is no evidence the Applicant has relapsed or resumed any involvement in illicit drugs since the making of the Residence Determination.
[33] Ibid.
I am satisfied that the Applicant can be accepted as a witness of truth. His evidence was not puffed up and vacuous. He was frank and forthcoming about his past difficulties with illicit drugs. Concessions were forthcoming about the extent to which those illicit drug abuse difficulties were directly causative of his unlawful conduct:
‘MR d’ASSUMPCAO: … Mr Applicant, because of your failed efforts to avoid using drugs you accept, don’t you, that you don’t have a very strong will to avoid them?
APPLICANT: Before, yes, I try too many times to stop and fell down, you know, but I try until now (indistinct) you know what I start doing – - –
INTERPRETER: Yes, despite the failed efforts in the past, but I have overcome that and (indistinct) this time. I’ve been clean for a while, and even when they cancelled my visa even that is not trigger my retrieve or relapse to go and use drugs. Therefore I consider this a success that I’m holding.
…
MR d’ASSUMPCAO: Mr Applicant, you’re presently participating in a program where you receive monthly injections, which is designed to help you with your heroin addiction?
APPLICANT: With relation to that program I have talked to my doctor and I have an appointment next week. I feel very strong at the moment and I would love to reduce that and gradually get rid of that, because I feel I don’t need it any more. So I would like to raise it with my doctor next week.’[34]
[34] Transcript p 23, lines 3-12; lines 23-29.
When cross-examined, the Applicant confirmed he was on medication for the purposes of weaning himself off heroin and that he has a case worker to assist him with participation in that program and that, in the event he were to relocate to Canberra (as a means of avoiding negative peer groups), the responsibility for him maintaining an involvement in this program rested on his shoulders:
‘MR d’ASSUMPCAO: Mr Applicant, you say in paragraph 5 under the heading ‘Medical arrangements’: ‘I have been getting my monthly Bute injections from a pharmacy’?
APPLICANT: Yes.
MR d’ASSUMPCAO: The reference to Bute is a reference to a medicine called Buvidal, B-u-v-i-d-a-l for the transcript, and I suggest that is a medicine used to treat dependence on drugs like heroin?
APPLICANT: Yes, yes.
MR d’ASSUMPCAO: Now, you have been on this program, the Bute program, for many months, including while in immigration detention?
APPLICANT: Yes.
MR d’ASSUMPCAO: And you’ve had, at least while in what they call community detention, you’ve had encouragement from people like your case worker to continue with the program?
APPLICANT: Yes.
MR d’ASSUMPCAO: And the support you receive from for instance your case worker has been very important to you in continuing with the program?
APPLICANT: Yes.
MR d’ASSUMPCAO: If you were released into the community and moved to Canberra you must accept that the decision to either continue on the Bute program and avoid drugs is entirely with you?
APPLICANT: Yes.’[35]
[35] Transcript, p 24, lines 1-21.
Further, the Applicant acknowledged that past difficulties and moments of stricture in his life have caused him to relapse into illicit drug use. He did, however, tell the hearing of a methodology he will adopt in the community to (1) avoid negative peer groups; and (2) deal with life’s difficulties without recourse to illicit substance abuse:
‘MR d’ASSUMPCAO: And your history has shown that unless you have some level of support if something bad happens in your life you have a tendency to fall back into drug use again?
INTERPRETER: In relation to the past you are right, because I was so weak and due to that a state of relapse, but now, thank God, I’m healthy, everything is good and I’m very strong, and after what happened (indistinct) return me to the chance I will stay clean.
MR d’ASSUMPCAO: Yes. You are afraid, aren’t you, that there’s a risk you might fall back into your own ways, and that is shown because you don’t want to move to Sydney where you have a history of bad company which leads to drug use and criminal offending?
INTERPRETER: Well, in the meetings I’m attending they have a leader and they have some psychological lessons, and they tell you, you know, to be successful and stay clean you should follow certain patterns and you don’t go around the people who you’ve been using drugs with or people you’ve been in contact and things go wrong. Therefore when I see that he is right, so therefore why should I try to get myself in trouble. I’m going to follow his instruction, listen to his advice, and go away from that situation.’[36]
[36] Ibid, lines 23-43.
Further still in the cross-examination, much was sought to be made of the Applicant’s expressed intention to leave the Sydney area because of his bad life experiences while there and to avoid any risk of a resumption of any association with negative peer groups involved in the promotion of illicit drug abuse.
To my mind, this line of questioning had little traction because there is nothing illogical about the Applicant wanting to leave and no longer reside in an area in which most, if not all, of his past difficulties with illicit drugs had occurred. In addition, he told the hearing about advice he had received at Narcotics Anonymous meetings to the effect that a re-association with such negative peer groups does present a risk of him returning to illicit drug abuse. This is why he has put plans in place to relocate to Canberra and to re-establish his life there. But this does not equate to an acceptance by the Applicant (or a finding by this Tribunal) that if he remained in Sydney, there would be some kind of convincing possibility or certainty that he would return to abusing illicit drugs.
The Applicant’s conduct in prison/immigration detention
There are two relevant instances. First, in June 2019 while in prison the Applicant was found with tobacco and smoking paraphernalia. While such items are not illegal in the community an inmate is not permitted to have these items in the New South Wales prison system. Second, in May 2020, while at Villawood, the Applicant was found to be in possession of the opioid substitute buprenorphine. This was deemed to be a contraband item because at the time it was found in the Applicant’s possession, it had not been prescribed to him with authority under an opioid substitution therapy program. Neither incident resulted in the proffering of any charge or the recording of any conviction.
To my mind, the significant point about these two incidents is that they occurred prior to the Applicant’s commencement with the rehabilitation process in mid-2020. He was placed in immigration detention in February 2020 and remained there for just over three years until March 2023 when he returned to the community under the auspices of the Residence Determination. During his over three years in immigration detention, apart from the abovementioned buprenorphine incident, the Applicant’s time in immigration detention has been unblemished. I agree with the Applicant’s contention ‘…one instance of contraband many years ago before his rehabilitation, followed by three years of an unblemished record is an exceptionally good record…’[37]
[37] Transcript, p 83, lines 36-38.
The logical extension to this submission is that provided the Applicant remains engaged with a rehabilitative process, his prospects of re-engagement with illicit drugs are demonstrably lower. The corollary of that is if he stays off the drugs, his level of recidivist risk is commensurately lower.
Future prospects
The evidence points to an Applicant who has developed some measure of a plan about how to re-involve himself with the community if released from immigration detention. That plan includes somewhere to reside and a means of finding remunerative employment. It also includes a resolution to leave the Sydney area to avoid any re-connection with the negative peer group with whom his involvement in illicit drugs manifested and persisted. It is worth quoting his statement in this regard:
‘If I am released from detention, my first choice is to go [Mr HZ] in Canberra because I know him the best and because he does not live in Sydney. I want to get away from Sydney because I have bad memories here, and I do not want to risk seeing the old people I used to take drugs with.
[Mr HZ] has an empty granny flat and he told me that I can live there. He also told me that he will give me a job in his construction business. Long term, I would like to establish my own construction business. I have my white card and I want to earn my excavator and forklift licences. Working long hours will help me to resist the temptation to use drugs.
I would like to continue my drug therapy program because it has been a big help to me. I would like to continue attending the same online Narcotics Anonymous group that I currently attend because everyone is very supportive of each other. I currently attend the group multiple times a week and I would continue to do so if I were released from detention.
I would like to find professionals in the community to assist me with my treatment. I would like to find a GP who will help me to gradually stop my suboxone treatment so I will not have to depend on medication anymore. I would like to find a psychologist and see them once a week for additional support because I understand that my feelings of loneliness as a result of missing my family contributed to my drug use.
I also want to go to church where I can connect with people again. Before I got into trouble and went to prison, I enjoyed seeing my friends from church and learning about God with other people. I want to continue to learn English and turn my life around so I can work hard and one day start a family. I understand that before I enter into another relationship I need to make sure I am clean and financially stable, so I can provide for my partner and hopefully our family. I don’t want to enter a relationship if I am unable or at risk of using drugs again because I don’t want drugs to mess up another person’s life.’[38]
[38] A6, pp 8-9, [41]-[45].
The Applicant’s evidence about an engagement with his faith should not be dismissed or taken lightly. It is augmented by the evidence of Mr Ken Kiat Ong who is also known as ‘Pastor Lawrence’ and is a minister of religion at the Centre of New Life in Sydney. His statement is in the material and dates from 21 April 2023.[39] He recalls the Applicant attending this church ‘in about 2017’,[40] and that the Applicant ‘…was with us for 2 or 3 years or there abouts.’[41] Mr Ong further notes that the Applicant ‘faithfully attended church.’[42] In terms of the Applicant’s more particular involvement with the church, Mr Ong said the following:
‘He regularly attended our service and helped with the set up. It's a lot of effort. Set up is something we require people to be very committed to. You have to wake up early and be there one hour before the 10am service to bring and set up all of the stuff. Not everyone can be so consistent, but he was.
He was engaged with it. We have people come and go but it wasn't like that for [the Applicant]. For that I remember him. And in that way the church is grateful for him.’[43]
[39] A15.
[40] Ibid, p 1, [3].
[41] Ibid, [4].
[42] Ibid, [5].
[43] Ibid, [8]-[9].
Mr HZ has provided evidence about the extent to which he could assist the Applicant with a return to the community in the event the Applicant went to reside in Canberra. Mr HZ has provided two statements. The first is dated 10 July 2022[44] and the second is dated 21 April 2023[45]. He also provided oral evidence at the hearing before me. In the first of those two statements Mr HZ said the following:
‘I can help [the Applicant] come to Canberra and can support him until he’s able to support himself. He can live with me for a week or two while he looks for somewhere to live. He has told me he has some money but even if he doesn’t have money, he can borrow some from me.’[46]
[44] A8.
[45] A9.
[46] A8, p 2, [12].
In the second of his two statements he said:
‘It is quiet in Canberra but work is very busy down here.
Recently [the Applicant] told me over the phone that he is now living in the community. He said it just happened very suddenly. I told him to come see me, but he said he doesn't have permission to work yet. This weekend I am planning to go to Sydney to visit him and catch up in person after so many years.
If he gets a visa, [the Applicant] told me is planning to come to Canberra if he can. He really doesn't like Sydney and doesn't want to meet people on the street who he used to know. Being away from them is the best option, so he wants to go to Canberra.
If [the Applicant] comes to Canberra, I can support him. He says he has money, but I can help him with money if necessary. I really want to keep an eye on him for the first few months and help him to readjust to the community.’[47]
[47] A9, p 1.
Mr PF is a glazier whose work involve the installation of windows, doors and balustrades. He met the Applicant about eight-nine years ago while they were both working in the construction industry in a north-west suburb of Sydney about 15km from the Sydney CBD. He has provided two statements which are respectively dated 9 August 2022[48] and 21 April 2023.[49] Mr PF also provided oral evidence at the hearing before me. In his first statement he said ‘…I am fully aware of his criminal history…’[50]. He goes on to say:
‘… am still happy to find him a job despite his offences. I know a lot of Iranian workers and have a lot of connections in the construction industry, so finding a job would be easy. A lot of companies are looking for labour now too, so I will be able to find him something.’[51]
[48] A13.
[49] A14.
[50] A13, p 1, [5].
[51] Ibid, p 1, [8].

In his more recent statement Mr PF confirmed:
‘I’m not working anymore…I’ve been home for about 2 years due to a back injury while I was working as a glazier. My disk and my bones were broken so now I’m always home.’[52]
[52] A14, p 1, [5].
He concludes this written statement by saying:
‘You can't judge someone. He's a good boy. If he can get back to the community and start work, he's good at full time work, he's a very good labourer. I will help him if he calls me and needs help no matter how long it has been since we have talked. I can connect him with people if he's looking for a job. I can help him with money for a few days. I can support him in the short term, or with finding a job.’[53]
[53] Ibid, [8].
Findings about risk
I acknowledge the novelty of the Residence Determination made on 27 March 2023 in the context of this case. I respectfully observe that both representatives did their level best to assist the Tribunal with navigating a way through or around this novel factor. Ultimately, I have concluded that the Residence Determination has nothing to say about the Applicant’s level of recidivist risk and that it would be otherwise unsafe to treat it otherwise. Neither of the two documents I have referred to[54] say anything about the Residence Determination being made or predicated on the Minister’s perceived level of the Applicant’s recidivist risk. I do not accept the Respondent’s contention that a non-citizen’s service of time in detention in the community is a milder version of serving such time in an actual facility. Likewise, such claimed differentiation does not speak to the Applicant’s level of recidivist risk.
[54] A22; R26.
I accept the Applicant’s remorse and assumption of responsibility as palpable and genuine. He has understood the extent to which he has now existentially spurned the opportunity to make a life for himself in this country. He has come to understand that the nature and quality of that ‘life’ in this country must not involve him associating with negative peer groups and maintaining an involvement with illicit drugs. His remorse is apparent from the regretful terms in which he described and, otherwise made concessions about, his past conduct. More particularly, his remorse and assumption of liability is to be found in the extent to which he has made, and intends to make, efforts to leave the Sydney area and re-establish himself in Canberra. It can also be seen in his understanding of the criticality around him staying off illicit drugs.
The state or level of the Applicant’s rehabilitation from illicit drug addiction is neither complete or at a point where an assumption can be made – based on absolute certainty – that he will never again return to illicit drugs. I am satisfied that he has understood the existential difference between the threat these proceedings pose to his visa status as opposed to simply entering a plea of guilty to a criminal charge proffered against him. The evidence points to a likelihood that the Applicant has understood (1) that he has in the past been prone to relapses; (2) that his involvement with illicit drugs has derived from negative peer pressure leading him to illicit drug abuse as a means of dealing with life’s inevitable difficulties and strictures; and (3) that this pattern is primarily responsible for his past offending which has brought him to the brink of forever losing his right to remain in this country.
This first likelihood points to a further likelihood that the Applicant has understood the critical requirement that he remains engaged with the rehabilitative process and that he does, as it were, seek and rely on the ‘strength in numbers’ to be found in a continued connection and involvement with Narcotics Anonymous and a case worker directly involved in keeping him within the parameters of the program designed to wean him off illicit drug addiction and abuse. In other words, I am satisfied that the evidence points to a realisation in the mind of this Applicant that if he does not do these things, there is a genuine chance the past could be repeated. Rehabilitation is not a ‘here today, gone tomorrow’ exercise. It is not akin to a surgical procedure involving, for example, the resection of suspicious tissue from a patient.
Rehabilitation is more akin to the administration of chemotherapy to a patient diagnosed with a malignant cancerous condition. Such therapy is administered with a caveat of ‘see how we go’ and, most usually, with no guarantees that all will be well. To my mind, the same paradigm applies to the rehabilitation being undertaken by this Applicant in relation to his difficulties with illicit substance abuse. He has undertaken and understands the critical need to continue to undertake rehabilitative measures to moderate and ultimately resolve his past pre-disposition towards illicit drugs. He has understood the critical requirement to do so not just for the purposes of his physical health, but for the purposes of not again existentially threatening his visa status to remain here.
The Applicant’s time in prison and immigration detention has seen him involved in two quite minor incidents. The first, in June 2019, saw him found in possession of tobacco and smoking paraphernalia. While this may have breached prison protocols, it says nothing about his recidivist risk because those items are entirely legal in the community. The second in May 2020, while in immigration detention, saw him found in possession of buprenorphine. His mistake there was to partake in this opioid substitute in the absence of it having been prescribed to him by a person with authority to do so as part of an opioid substitute therapy program. Buprenorphine is now a cornerstone in the Applicant’s rehabilitative process. This incident says nothing about the Applicant level of recidivist risk.
More to the point, what does speak to the level of his recidivist risk is that since he has become engaged with a rehabilitative process (which he commenced in mid-2020), there are no incidents or examples of him being on the wrong side of illicit drugs, whether it be being found in possession of them or being found to have consumed them.
The Applicant’s future prospects are clearly stated and supported by the evidence. He clearly has interests outside of a world involved with illicit drug use. He interest in matters of faith is something that has been observed by at least one other person (Mr Ong/Pastor Lawrence). Mr HZ has given credible and reliable evidence about assisting the Applicant with lodgings in the event he goes to live in Canberra if successful in the instant proceeding. Mr PF has an almost decade long association with the Applicant and although a work injury has precluded him from active engagement in the building industry, he has maintained his contacts in that industry and can facilitate remunerative employment for the Applicant were he returned to the community. I am satisfied (and I find) that the Applicant’s future prospects speak favourably to the level of his recidivist risk.
I am satisfied that the Applicant’s remorse and acceptance of his offending, the state of his drug rehabilitation, his conduct in prison and immigration detention and the nature and extent of his future prospects are factors that favourably speak to his level of recidivist risk. If returned to the community, he will maintain an involvement in the rehabilitative process, leave Sydney and move to Canberra to avoid negative peer groups, have somewhere to reside and also have remunerative employment to engage in. Taken in total, these factors surely point to a lower recidivist risk than was the case at the time of his most recent removal from the Australian community. I am satisfied that he currently represents a low recidivist provided he adheres to, adopts and implements the above factors speaking favourably to that risk. I so find.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) of the Direction provides:
‘where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.’
This decision involves a determination about whether or not this Tribunal exercises a power to refuse to grant the SHEV sought by the Applicant. It is thus necessary to address sub–paragraph 8.1.2(2)(c) of the Direction with specific reference to the decision that refused the Applicant’s application for the subject SHEV pursuant to s 501(1) of the Act. This refusal decision does involve a ‘refusal to grant a visa to a non-citizen’ and thus, paragraph 8.1.2(2)(c) of the Direction is engaged. It compels three enquiries. First, it involves an enquiry into whether the risk of harm represented by a non-citizen may be affected by the duration and purpose of that non-citizen’s intended stay in Australia. Second, the type of visa being applied for. Third, whether there are strong or compassionate reasons for granting a short-stay visa.
As to the first item, this application involves the Applicant’s intention to be granted a Safe Haven Enterprise (Class XE) Visa. This visa will allow the Applicant to remain in Australia for a period of 5 years.[55] The risk of harm represented by the Applicant consequent upon his right to remain here more or less indefinitely (if granted the visa he seeks) does not, to my minds, speak any more volubly about the extent of his risk of perpetrating harm on the Australian community to any greater extent than my above analysis of his recidivist risk for the purposes of paragraph 8.1.2(2)(b) does.
[55] Migration Regulations 1994 (Cth) reg 790.511.
As to the second item, the type of visa the Applicant has applied for (i.e a SHEV) does not speak to the harm he does or does not represent to the Australian community and is therefore not relevant to the instant determination. As to the third item, the Direction does not include any componentry around ‘compassionate reasons’ for granting any visa. The visa the Applicant seeks is not a short-stay visa and this third item is therefore irrelevant to the instant determination.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been at least serious and, possibly, very serious;
(b)I have found that if this Applicant were to re-commit any of his index offending, there would be the potential for actual or potential harm being occasioned to others. I have also found that there is neither a cumulative nature to his offending or an offending singularity in this Applicant’s history suggestive of such future offending being unacceptable to the Australian community; and
(c)in terms of recidivist risk, I adopt the findings that this Applicant represents a low recidivist risk.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a certain, but not determinative, level of weight against this Tribunal exercising the power to refuse to grant the subject visa to this Applicant.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
It is common ground between the parties that this Primary Consideration 2 is not applicable to the determination of this application.[56] I agree and allocate neutral weight to it.
[56] Transcript, p 84, lines 38-44.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this Paragraph 8.3. I will address each in turn.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
I have searched the material and cannot identify any person(s) comprising his immediate family in Australia who are citizens, permanent residents or people who have a right to remain here indefinitely. As best as I understood the material, his immediate family is in Iran. In the first of his two most recent statements he refers to a personal relationship with a Ms AV. He says that he met her ‘…around the end of 2016 to 2017…’.[57] The relationship appears to have been a tempestuous one and the Applicant refers to it in these terms:
‘I met [Ms AV] around the end 2016 to 2017, I can’t remember exactly when, but I was still working in construction at the time. During the first few months of our relationship, I was very happy. [Ms AV] helped me to speak English, and I when I came home from work, she was there and we talked about each other’s day. I felt she understood me.
After a few months, [Ms AV] and I started arguing because of an issue with our rental home. These arguments happened more often, and we eventually broke up. The break-up did not last long because we were in love with each other. We got back together, but then broke-up again because of some other argument. This happened many times. Either [Ms AV] left me or I left her, and we would get back together.’[58]
[57] A6, p 2, [8].
[58] Ibid, [8]-[9].
For the purposes of this decision I will presume (and find) that the Applicant’s relationship with Ms AV has ended. For the further purposes of this decision I will additionally presume (and find) that the Applicant does not have any immediate family members in Australia and that this paragraph 8.3(1) is not relevant to my application of this Primary Consideration 3 to the instant facts.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
The Applicant does not have minor or adult children in Australia that could be possibly captured by the auspices of this paragraph. It is not relevant to my application of this Primary Consideration 3 to the instant facts.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. This paragraph of the Direction does not specifically formulate a methodology as to the manner of how weight is to be allocated to these two categories of ties. Be that as it may, I will proceed to examine the Applicant’s links with these two categories of people and allocate weight in his favour to the extent of whatever strength, duration and nature there may be found to be in those links.
First, I am not able to locate any person that could fall within the definition of an ‘other family member’ of this Applicant. This component of this paragraph is not relevant. Second, it is clear that he has developed social contacts and/or links in this country. As best as I understood the material, those social ties/links comprise:
·The abovementioned, Mr HZ;
·Mr HMS;
·Mr AR;
·Mr MG;
·The abovementioned Mr PF; and
·The abovementioned Mr Ken Kiat Ong (also known as Pastor Lawrence).
I have earlier recounted the evidence of Messrs HZ, PF and Pastor Lawrence. It suffices to say that each of them are connected to the Applicant in their own ways. Mr HZ has a connection more in terms of a social relationship and that relationship is said by him to be of such an extent that he is willing and able to reliably offer the Applicant secure board and lodgings in the event of the Applicant’s return to the community and intended relocation to Canberra. The Applicant’s past history with illicit drugs and his difficulty with the law are not factors that dissuade Mr HZ from admiring the Applicant and maintaining a friendship with him.
Mr PF is connected to the Applicant more via a shared work history. He has known the Applicant for almost a decade and found him both a decent person and a good worker. That positive impression has remained with Mr PF and has now manifested into quite credible evidence from him involving the sourcing and securing of remunerative employment for the Applicant were he to be returned to the community. Mr PF is aware of the Applicant’s difficulties with illicit drugs and with the law. Such is the regard and esteem in which Mr PF holds the Applicant that despite these mis-steps, he would nevertheless still recommend the Applicant for work in the building and construction industry.
Mr Ong/Pastor Lawrence experienced a level of social proximity to the Applicant when the latter was a parishioner of his church. Pastor Lawrence recounts the very positive nature and extent of the Applicant’s engagement with the church’s affairs and congregation. He is aware of the Applicant’s involvement with illicit drugs and with the law but would nevertheless look beyond those transgressions and, on any reasonable view, would gladly welcome the Applicant back to his congregation.
Each of these three witnesses are not witnesses of convenience procured by the Applicant for the purposes of this hearing (or any previous iteration of it). They are people with a longitudinal history of engagement with the Applicant. To a man, they still feel connected to the Applicant and would welcome the Applicant’s return to their lives as their friend and/or work colleague and/or parishioner. I am satisfied that each of these three individuals would be adversely impacted were the Applicant to be either removed from Australia or that he otherwise be caused to be physically removed from their lives by virtue of being placed in immigration detention on an indefinite basis. I predicate this finding on each of these three people being Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
I will now discuss the extent of the Applicant’s ties to the remaining social contacts listed above at [102] of these Reasons. Mr HMS has provided several statements in the history of this matter. The two most recent ones are dated, firstly, 10 July 2022[59] and the second is dated 21 April 2023.[60] Mr HMS came to Australia in the same year as the Applicant in 2013. He owns a labour hire business in Sydney which he has operated since 2015. He first met the Applicant in 2014 on a construction site in a north-west Sydney suburb. He is aware of the Applicant’s difficulties with illicit drugs and of his difficulties with the law. He speaks of a willingness to assist the Applicant to find employment and to offer him lodgings:
‘If [the Applicant] gets out of detention, I will help him, 100%. He is a nice and reliable guy. He can work for me at my business, no problem. I’m the boss, everything is in my hands, so I can hire him. He is a good labourer, but it’s not because I need labour: I want to help him. When I’m doing something good for God, my heart’s getting happy, because I’m helping someone.
I could give him full-time work, but I might only give him three days, because it might be hard for him to work five days as soon as he’s out. But I will control him: I will make sure that he goes to work and comes back.
…
I will also help [the Applicant] to find a place to live. I can find him a one-bedroom unit or some place like that to live, 100%.’[61]
[59] A10.
[60] A11.
[61] A10, pp 1-2, [8]-[9], [12].
Mr HMS’s more recent statement largely echoes the sentiments of his first but goes on to say the following:
‘I know that he wants to move to Canberra if he gets a visa, but I told him that if he doesn't go, I can give him accommodation and a job in Sydney. I can even get him a car.
I can offer him many jobs through my company, as a general labourer, forklift driver or hoist operator. The job can be 6-7 days per week if he wants, to keep him busy and out of trouble. We've worked together before and I know he's a very hard worker, he works so good.’[62]
[62] A11, p 1, [12]-[13].

In relation to sub-paragraph (c) of the abovementioned paragraph [127], I repeat that the Applicant resided in Australia from the age of 26. He is currently 36 years of age. He has resided in Australia since mid-2013. He has spent about 30 percent of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [127] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. This finding is not augmented by any ancillary finding that he has spent his formative years in this country because he came here when he was 26 years old.
In relation to sub-paragraph (e) of the abovementioned paragraph [127], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing any of his offending, and (on the other hand) whatever countervailing considerations may work in his favour, is not necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature of the Applicant’s offending conduct and the resulting harm from that conduct (thus far) has not been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [127], I have found that only one offence committed by the Applicant is captured by sub-paragraph 8.5(2)(d). However, I have made that finding in a very cautious way and have applied it to the Applicant in the mildest possible terms. Given that particular finding, I am compelled to arrive at a finding that that even strong countervailing considerations in his favour may not assist the Applicant. However, I repeat that I made this finding very cautiously and applied it to the Applicant very mildly. Therefore, although my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour, I make that finding in the mildest possible terms against the Applicant.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [127], I am of the view that the Australian community’s expectations are modified such that the community does have a higher than usual tolerance of criminal conduct by the Applicant. Because of the (overall) serious and possibly very serious nature of his offending, I am of the view (and I find) that the community expects the Government can and should deny the Applicant a visa to remain here.[90] I make this finding cautiously and apply it in the mildest possible terms against this Applicant.
Conclusion: Primary Consideration 5
[90] Paragraph 5.2(3) of the Direction.
I am of the view that this Primary Consideration 5 confers a certain, but not determinative level of weight in favour of this Tribunal exercising the power to refuse to grant the visa sought by this Applicant.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequence of the decision
The material confirms the Applicant has been identified by the Department has a non-citizen for whom a protection finding was made in the course of considering his application for a protection visa. This means the Applicant cannot be removed to Iran even if this Tribunal exercises the power to refuse to grant the visa he seeks. Such refusal would have the effect of rendering him an unlawful non-citizen. In any event, the Department of Foreign Affairs and Trade ‘Country Information Report’ for Iran, current as at 14 April 2020, confirms that ‘Iran has a global and long-standing policy of not accepting involuntary returns.’[91] Therefore, paragraph 9.1.1 of the Direction mandates that non-refoulement obligations are engaged in relation to this Applicant.[92]
[91] DFAT Country Information Report Iran, p 70, [5.27].
[92] Paragraph 9.1.1(1) of the Direction.
I agree with the Applicant’s submission to the effect that the provisions of s 197C(3) of the Act and paragraph 9.1.1(2) of the Direction are engaged because (1) a protection finding has been made with respect to the Applicant’s country of nationality; and (2) the Applicant has made a valid application for a protection visa.[93] I am of the view that s 197C(3) applies to the instant facts regardless of whether or not this Tribunal refuses to grant the visa sought by the Applicant. In these circumstances, an officer of the Respondent’s Department is not authorised to remove the Applicant from Australia unless the Applicant requests that he be removed to his country of nationality. No such request has been made by the Applicant.
[93] G1, p 105.
Given the protection finding made on 12 August 2021,[94] were this Tribunal to exercise the power to refuse the visa sought by the Applicant, he would not be removed to Iran. The consequence for the Applicant would be that he would remain in detention with no fixed end date. This, in turn, leads me to a specific legal consequence of the cumulative effect of the Applicant not succeeding in securing the protection visa he seeks, that being: indefinite detention.
Indefinite detention in the context of this case
[94] See G1, pp 104-106.
The consequences of a ‘refusal to grant’ outcome in these proceedings
It is necessary to consider any legal consequence arising from a decision to refuse to grant the subject visa noting that it has been previously refused by the Respondent’s delegate on 26 May 2022.[95] One specific consequence of a refusal outcome from this Tribunal could quite likely involve the Applicant’s prolonged or indefinite detention. I regard this issue as a legal consequence of this Tribunal’s decision in relation to this proceeding being adverse to the Applicant.[96] Section 189 of the Act provides that an adverse outcome for the Applicant in the instant proceeding would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a ‘refusal to grant’ outcome in this application could very well extend the Applicant’s time in an immigration detention facility.
[95] See G1, pp 12-32.
[96] VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].
Were this Tribunal not to grant the Applicant a SHEV, the likely reality will be that he will remain in immigration detention until another event ends that detention. In terms of such an ‘event’, there are three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
While it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of the Applicant, the weight attributable to this Other Consideration (a) is impacted by several factors. First, as stated in paragraph 9.1.1 (3) of the Direction, the Applicant is precluded from again applying for a protection visa while he is in the migration zone by virtue of the bar appearing in s 48A of the Act. This difficulty may be obviated if the Respondent Minister makes a determination, pursuant to s 48B of the Act, that the bar in s 48A does not apply to the Applicant.
Second, given that a protection finding has been made, the Applicant would not be liable for removal unless and until any one of the following occur:
·the decision grounding the protection finding is quashed or set aside; or
·
pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of

s 197C(3) of the Act applies; or
·the Applicant asks the Minister, in writing, to be removed.
Third, as outlined earlier, protection findings have already been made in relation to this Applicant. Therefore, were this Tribunal to affirm the decision refusing the grant of a the visa sought by the Applicant, he would most likely remain in detention until:
·one of the events in s 197C(3)(c) occurs; or
·the Minister exercises their personal powers to grant another visa to the Applicant; or
·the Minister makes a residence determination in respect of the Applicant.
If any of the immediately preceding three dot-pointed items occur, then the Applicant’s time in detention will end. If none of those items occur then it must be accepted that a legal consequence of this Tribunal refusing the grant of a protection visa, would be that the Applicant will be detained in immigration detention without a fixed endpoint.[97] I am of the view (and I find) that this Other Consideration (a)[98] confers a heavy level of weight in favour of this Tribunal not exercising the power to refuse to grant the visa sought by this Applicant.[99]
[97] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [123]-[124].
[98] With specific reference to the indefinite detention issue.
[99] Pursuant to s 501(1) of the Act.
The possibility of a ministerial exercise of power
I am also mindful of her Honour Justice Jagot’s comments in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[100] to this effect:
‘The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.’[101]
[100] [2022] FCA 878.
[101] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 at [42].
As referred to earlier, the Minister has exercised his personal discretion under s 197AB of the Act to make a Residence Determination enabling the Applicant to reside at a specific place in the community, subject to those conditions. This determination was made on 27 March 2023.[102] It relevantly tells the Applicant the following things:
‘The residence determination enables you to reside at the address listed above, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1) of the Act (for example Immigration Residential Housing, Immigration Detention Centre, or other secured detention arrangements).
The residence determination applies only to the address listed above. As such, you must not live or temporarily stay at a different address, other than as indicated in the attached conditions.
While you are able to move about the community without being accompanied or restrained by an officer under the Act, residence determination is a form of immigration detention and does not give you lawful status, or the rights or entitlements of a person living in the community as a holder of a valid visa. Residence determination is not a visa grant.’[103]
[My emphasis]
[102] See A22 and R26.
[103] A22.
Further, the subject Determination tells the Applicant that ‘…the Minister may at any time revoke or vary the residence determination under s 197AD of the Act.’[104] The subject determination also provides specific conditions to be strictly followed by the detainee. Relevantly, condition 5 provides as follows:
[104] A22.
‘CONIDTION 5 –Work and Study
(a)You must not engage in work, or any other activity, which would normally receive an income or salary.
(b)If you are over 18 years of age, you must not engage in any vocational studies or training and you must seek prior approval from the Department to participate in an educational program.
(c)You must not engage in unpaid work, such as volunteering, unless it is approved by the Department.’[105]
[Emphasis in original]
[105] A22.
Therefore, it can be safely found that the Residence Determination (1) precludes the Applicant from engaging in remunerative employment; (2) precludes him from engaging in any vocational study or training without prior permission from the Department; and (3) precludes him from engaging in unpaid work without approval from the Department. Earlier in these Reasons, I referred to an ‘event’ ending the detention of this Applicant.[106] I described one of those events as the Minister exercising his discretion under s 197AB to make a residence determination.
[106] See [140] of these Reasons.
For the sake of clarity, I point out (and find) that the making of a residence determination in respect of this Applicant does not constitute a formal or legal end to his term in immigration detention. It is not (to use common nomenclature) ‘immigration detention-lite’. Although a ‘community detainee’ (as the Residence Determination describes him), the Applicant is still subject to a form of immigration detention. He remains an unlawful non-citizen and he has none of the rights or entitlements of a person living in the community as the holder of a valid visa. A residence determination is an ‘event’ that ends an unlawful non-citizen’s time within the physical confines of an immigration detention facility. It does not end that person’s time in immigration detention and does not otherwise restore that person to any parity with a person holding a valid visa residing in the Australian community.
I am of the view (and I find), that the legal consequences of this decision (and thus, Other Consideration (a)) confers a heavy level of weight in favour of this Tribunal not exercising the power to refuse to grant the visa sought by this Applicant.
Other Consideration (b): Extent of impediments if removed
This consideration is confined to impediments that would be faced by an unlawful non-citizen upon removal to their home country. For the reasons I have outlined in my discussion around Other Consideration (a), there is no scope for the Applicant to be removed to Iran. Accordingly, this Other Consideration (b) weighs neither for or against visa refusal.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
As I understand the language of this Other Consideration, it requires either (1) a statement from a victim(s) of the Applicant’s offending agitating in favour of this Tribunal exercising the power to refuse the subject visa; or (2) a statement from the victim(s) of the Applicant’s offending agitating to the contrary and actually urging the Tribunal to not exercise the power to refuse the subject visa.[107] The material before the Tribunal contains no such statement.
[107] PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235, paras [57]-[59]. Note: I note His Honour referred to “cancellation of a visa” at [57] of the quoted judgement. For the purposes of these Reasons, I have assumed His Honour’s observations apply equally in visa refusal matters pursuant to s 501(1) of the Act.
The Respondent has not called evidence about any impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible of me to enter the realm of conjecture and speculate about the extent of any impact this Applicant’s offending has had, or would have, on any of its victims.
In these circumstances the Tribunal cannot apply the terms of this Other Consideration (c) to the instant facts. It must be found to weigh neither for or against visa refusal. I so find.
Other Consideration (d): Impact on Australian business interests.
There is nothing before the Tribunal supportive of any finding that the Applicant’s removal would negatively impact Australian business interests. In these circumstances the Tribunal cannot apply the terms of this Other Consideration (d) to the instant facts. It must be found to weigh neither for or against visa refusal. I so find.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of heavy weight in favour of this Tribunal not exercising the power to refuse the subject visa;
(b)extent of impediments if removed: is of neutral weight;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Section 501(1) of the Act provides that this Tribunal may refuse to grant the Applicant’s requested visa. As explained previously it is not contested that the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that the Tribunal should not exercise the power conferred by s 501(1) of the Act to refuse to grant the Applicant’s requested visa. I make this finding on the basis that the Applicant does not pass the character test.
In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight I have allocated to each of these Primary and Other Considerations, I find as follows:
(a)Primary Consideration 1: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;
(b)Primary Consideration 2: is not relevant and confers neutral weight;
(c)Primary Consideration 3: confers a heavy, level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;
(d)Primary Consideration 4: is not relevant and confers neutral weight
(e)Primary Consideration 5: confers a certain, but not determinative level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and Other Consideration (a) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa sought by the Applicant.
The Tribunal is appreciative of the support and assistance afforded to it by the parties’ representatives. In particular, the Tribunal respectfully notes and commends the pro-bono basis upon which Counsel and instructing solicitors conducted in matter on behalf of the Applicant.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the Respondent dated 26 May 2022 and substitutes it with a decision to not exercise the power to refuse to grant the Safe Haven Enterprise (Class XE) Visa under section 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

....................................[SGD]............................
Associate
Dated: 26 July 2023

Dates of hearing: 7 and 8 June 2023

Counsel for the Applicant: Ms Alison Hammond

Solicitor for the Applicant: Hugo Wilesmith (Associate)

Allens

Counsel for the Respondent: Mr Paul d'Assumpcao

Solicitor for the Respondent: Ms Claire Campbell (Special Counsel)

HWL Ebsworth Lawyers
ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

G1 Remittal Bundle Part 1
(G1-G50, paged 1-254) Various 15 Mar 2023

G2 Remittal Bundle Part 2
(G50-G51, paged 255-301) Various 15 Mar 2023

R3 Statement of Facts, Issues and Contentions of the Respondent
(paged 1-12) 29 Jul 2022 17 May 2023

R4 Further Statement of Facts, Issues and Contentions of the Respondent
(1-3 pages) 17 May 2023 17 May 2023

A5 Statement of Facts, Issues and Contentions of the Applicant
(paged 1-19) 21 Apr 2023 21 Apr 2023

A6 Statement of the Applicant
(paged 1-9) 11 Jul 2022 21 Apr 2023

A7 Further Statement of the Applicant
(paged 1-5) 21 Apr 2023 21 Apr 2023

A8 Statement of Intent to Provide Support of Mr HZ
(1-2 pages) 10 Jul 2022 21 Apr 2023

A9 Further Statement of Intent to Provide Support of Mr HZ
(paged 1-3) 21 Apr 2023 21 Apr 2023

A10 Statement of Intent to Provide Support of Ms HMS
(1-2 pages) 10 Jul 2022 21 Apr 2023

A11 Further Statement of Intent to Provide Support of Mr HMS
(paged 1-2) 21 Apr 2023 21 Apr 2023

A12 Statement of Intent to Provide Support of Mr MG
(paged 1) 21 Apr 2023 21 Apr 2023

A13 Statement of Intent to Provide Support of Mr PF
(1-2 pages) 9 Aug 2022 21 Apr 2023

A14 Further Statement of Intent to Provide Support of Mr PF
(paged 1) 21 Apr 2023 21 Apr 2023

A15 Statement of Intent to Provide Support of Ken Kiat Ong
(paged 1-2) 21 Apr 2023 21 Apr 2023

A16 Statement of Intent to Provide Support of Mr AR
(paged 1-2) 21 Apr 2023 21 Apr 2023

A17 IHMS Clinical Records Part 1
(paged variously, total pages 1-255) Various 21 Apr 2023

A18 IHMS Clinical Records Part 2
(paged variously, total pages 1-58) Various 21 Apr 2023

A19 IHMS Clinical Records Part 3
(paged variously, total pages 1-9) Various 21 Apr 2023

A20 Certified Translation Screenshots
(1-5 pages) 24 Jul 2022 21 Apr 2023

A21 Certified Translation Screenshots of Bible App
(1-3 pages) 24 Jul 2022 21 Apr 2023

A22 Letter of Residence Determination
(1-5 pages) 27 Mar 2023 21 Apr 2023

R23 Applicant’s Clinical Records
(paged variously, total pages 1-302) Various 17 May 2023

A24 Supplementary Statement of the Applicant
(paged 1-2) 31 May 2023 31 May 2023

R25 Transcript from previous Tribunal hearing dated 15 and 16 August 2022
(paged 1-201) 15 and 16 Aug 2022 7 Jun 2023

R26 Instrument of residence determination
(7 pages) 27 Mar 2023 8 Jun 2023

Dates of hearing:	7 and 8 June 2023
Counsel for the Applicant:	Ms Alison Hammond
Solicitor for the Applicant:	Hugo Wilesmith (Associate)
Allens
Counsel for the Respondent:	Mr Paul d'Assumpcao
Solicitor for the Respondent:	Ms Claire Campbell (Special Counsel)
HWL Ebsworth Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Remittal Bundle Part 1 (G1-G50, paged 1-254)	Various	15 Mar 2023
G2	Remittal Bundle Part 2 (G50-G51, paged 255-301)	Various	15 Mar 2023
R3	Statement of Facts, Issues and Contentions of the Respondent (paged 1-12)	29 Jul 2022	17 May 2023
R4	Further Statement of Facts, Issues and Contentions of the Respondent (1-3 pages)	17 May 2023	17 May 2023
A5	Statement of Facts, Issues and Contentions of the Applicant (paged 1-19)	21 Apr 2023	21 Apr 2023
A6	Statement of the Applicant (paged 1-9)	11 Jul 2022	21 Apr 2023
A7	Further Statement of the Applicant (paged 1-5)	21 Apr 2023	21 Apr 2023
A8	Statement of Intent to Provide Support of Mr HZ (1-2 pages)	10 Jul 2022	21 Apr 2023
A9	Further Statement of Intent to Provide Support of Mr HZ (paged 1-3)	21 Apr 2023	21 Apr 2023
A10	Statement of Intent to Provide Support of Ms HMS (1-2 pages)	10 Jul 2022	21 Apr 2023
A11	Further Statement of Intent to Provide Support of Mr HMS (paged 1-2)	21 Apr 2023	21 Apr 2023
A12	Statement of Intent to Provide Support of Mr MG (paged 1)	21 Apr 2023	21 Apr 2023
A13	Statement of Intent to Provide Support of Mr PF (1-2 pages)	9 Aug 2022	21 Apr 2023
A14	Further Statement of Intent to Provide Support of Mr PF (paged 1)	21 Apr 2023	21 Apr 2023
A15	Statement of Intent to Provide Support of Ken Kiat Ong (paged 1-2)	21 Apr 2023	21 Apr 2023
A16	Statement of Intent to Provide Support of Mr AR (paged 1-2)	21 Apr 2023	21 Apr 2023
A17	IHMS Clinical Records Part 1 (paged variously, total pages 1-255)	Various	21 Apr 2023
A18	IHMS Clinical Records Part 2 (paged variously, total pages 1-58)	Various	21 Apr 2023
A19	IHMS Clinical Records Part 3 (paged variously, total pages 1-9)	Various	21 Apr 2023
A20	Certified Translation Screenshots (1-5 pages)	24 Jul 2022	21 Apr 2023
A21	Certified Translation Screenshots of Bible App (1-3 pages)	24 Jul 2022	21 Apr 2023
A22	Letter of Residence Determination (1-5 pages)	27 Mar 2023	21 Apr 2023
R23	Applicant’s Clinical Records (paged variously, total pages 1-302)	Various	17 May 2023
A24	Supplementary Statement of the Applicant (paged 1-2)	31 May 2023	31 May 2023
R25	Transcript from previous Tribunal hearing dated 15 and 16 August 2022 (paged 1-201)	15 and 16 Aug 2022	7 Jun 2023
R26	Instrument of residence determination (7 pages)	27 Mar 2023	8 Jun 2023