YFLK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 2891

YFLK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2891 (25 August 2022)

Division:GENERAL DIVISION

File Number:               2022/4722

Re:YFLK

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President

Date:25 August 2022

Date of written reasons:         1 September 2022    

Place:Sydney

The decision under review is affirmed.

................................[sgd]........................................

The Hon. Dennis Cowdroy AO QC, Deputy President

Catchwords

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community  – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Bartlett and Minister for immigration and Border Protection [2017] AATA 1561
Donnelly and Minister for Immigration [2019] FCA 798
Folau v Minister for Immigration and Border Protection [2016] FCA 1149
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] 267 FCR 628
NBMZ v Minister for Immigration and Border Protection [2014] 220 FCR 1

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
‘Health professionals confront the intentional harms of indefinite immigration detention: an Australian overview, evaluation of alternative responses and proposed strategy’ by Michael Dudley, Peter Young, Louise Newman, Fran Gale and Rohanna Stoddart

‘Seeking asylum in Australia: immigration detention, human rights and mental health care’ by Louise Newman, Nicholas Proctor and Michael Dudley.

REASONS FOR DECISION

The Hon. Dennis Cowdroy AO QC, Deputy President

25 August 2022

1. The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 2 June 2022 (“the decision under review”) made under section 501 (1) of the Migration Act 1958 (Cth) (“the Act”) to refuse to grant the applicant a Safe Haven Enterprise (Class XE), Subclass 790, Visa (“the visa”).

2. A delegate of the Minister reasonably suspected that the Applicant did not pass the character test as provided by section 501 (2) (a) of the act and that the applicant did not satisfy the Minister that the he pass the character test, as provided by section 501 (2) (b) of the act.

3. On 2 June 2022 a delegate of the Minister decided not to revoke the original decision. On 7 June 2022, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 15 and 16 August 2022 using the Microsoft Teams platform.

   relevant law and policy: DIRECTION no. 90

4. Section 501 of the Act states:

   (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

   (2) The Minister may cancel a visa that has been granted to a person if:

   (a) the Minister reasonably suspects that the person does not pass the character test; and

5. Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

6. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”). Such Direction was made on 8 March 2021 and came into operation on 15 April 2021. The Direction by virtue of Cl 5.1 thereof is stated to guide decision-makers in performing functions or exercising powers, inter alia, under section 501 of the act (see cl 5.1 (4).

7. The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:

   1.Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   2.Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   3.The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   4.Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

   5.Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(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.

8. Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

9. The primary considerations (paragraph 8 of the Direction) are:

   (a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);

   (b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);

   (c)best interests of minor children in Australia (“Primary Consideration C”); and

   (d)expectations of the Australian community (“Primary Consideration D”).

10. The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.

    Facts

11. The Applicant, who is 35 years of age, was born in Iran. The Applicant is a citizen of Iran who arrived in Australia on 11 June 2013 and who has not departed from this country since that date. During this period the applicant has been convicted of 26 offences, and has come under police notice in respect of other matters which have not resulted in court proceedings.

    evidence

    Statements

12. The Tribunal has had regard to the various character references and statements before it, namely:

    (i)statement of the applicant dated 11 July 2022

    (ii)statement of Friend A dated 10 July 2022

    (iii)statement of Friend B dated 10 July 2022

    (iv)statement of Friend C dated 11 July 2022

    (v)statement of Friend D dated 10 July 2022

    (vi)statement of Friend E dated 10 July 2022

    (vii)statement of Friend F dated 10 July 2022

    (viii)statement of Friend G dated 10 July 2022

13. The Tribunal has also had regard to the following publications submitted on behalf the applicant to the Tribunal concerning the detrimental effects of immigration detention:

    (a) Seeking Asylum in Australia: Immigration Detention, Human Rights and Mental Health Care, a publication of Australian Psychiatry edited by Louise Newman, Nicholas Proctor and Michael Dudley;

    (b) Health professionals confront the intentional harms of indefinite immigration detention: an Australian overview, evaluation of alternative responses and proposed strategy by Michael Dudley, Peter Young, Louise Newman, Fran Gale and Rohanna Stoddart.

    Oral evidence

14. The Tribunal heard oral evidence from the Applicant and Friend E, Friend D and Friend A.

    Applicant’s Criminal history

15. The applicant has an extensive criminal history. A schedule of the applicant’s offending is set out hereunder:

Date of offence(s)	Court dates	Offence	Penalty (ultimately) imposed	Number of offences
1.	20 June 2016	9 August 2016	Possess prohibited drug	s 10 bond (dismissed)	-
2.	Between: 28 December 2017 and 30 September 2018	8 July 2019 2 September 2019 (appeal re: sentence)	Larceny value <=$2000 x 10	15 months’ imprisonment, 9 months non-parole (aggregate) (Non-parole: from 1 June 2019 to 29 February 2020)	10
3.	Between: 28 December 2017 and 30 September 2018	8 July 2019 2 September 2019 (appeal re: sentence)	Participate criminal group contribute criminal activity	15 months’ imprisonment, 9 months non-parole (aggregate) (Non-parole: from 1 June 2019 to 29 February 2020)	1
4.	22 January 2018	1 March 2018 (One count only)	Larceny value <= $2000 x 2	6 months’ imprisonment	2
4 July 2018 (Call-up for one count: resentence following breach of bond; one new count)	(From 2 October 2018 – 1 April 2019)
3 October 2018 (Call- up: resentence following breach of bond)
5.	23 January 2018	15 February 2018 (One count only)	Goods in custody x 3	6 months’ imprisonment	3
1 March 2018 (One count only)	(From 2 October 2018 – 1 April 2019)
4 July 2018 (Three counts, including call- up: resentence following breach of bond)
3 October 2018 (Call- up: resentence  following breach of bond)

6.	12 February 2018	1 March 2018	Fail to appear	s 10 bond (dismissed)	-
7.	15 February 2018	1 March 2018	Enter enclosed land	s 10 bond (dismissed)	-
8.	21 February 2018	4 July 2018	Possess prohibited drug	6 months’ imprisonment	1
3 October 2018 (Call- up: resentence following breach of bond)	(From 2 October 2018 – 1 April 2019)
9.	27 March 2018	4 July 2018 2 September 2019 (appeal re: sentence)	Larceny	6 months’ imprisonment (From 2 October 2018 – 1 April 2019)	1
10.	27 March 2018	28 August 2018	Drive licence suspended	$500 fine	1
11.	27 March 2018	28 August 2018	Exceed speed >45 km/h	$1,500 fine and 6 months’ licence disqualification	1
12.	27 March 2018 (x 1)	4 July 2018	Goods in custody x 3	6 months’ imprisonment	3
and 5 April 2018 (x 2)	8 July 2019 (Call-up: resentence following breach of bond)	(From 2 October 2018 – 1 April 2019)
2 September 2019 (Call-up: resentence following breach of bond)
13.	22 May 2018	3 October 2018	Common assault	3 years’ community correction order (From 3 October 2018 to 2 October 2021)	1
14.	1 October 2018	3 October 2018	Police pursuit, not stop, drive dangerously (first offence)	12 months’ imprisonment (From 2 February 2019 to 2 February 2020) and 2 years’ licence disqualification.	1
15.	1 October 2018	3 October 2018	Drive while disqualified (first offence)	4 months’ imprisonment (From 2 February 2019 to 2 June 2019) and 12 months’ licence disqualification.	1
Total:					26

Sentencing observations

1. The Tribunal has considered sentencing observations in relation to these convictions.

   Liverpool Local Court

2. On 3 October 2018, before the Local Court of New South Wales at Liverpool, Magistrate McAnulty considered the offence of possessing prohibited drug, having goods in custody, larceny, failing to appear, driving was disqualified, police pursuit – not stop - driving dangerously and common assault. His Honour said, relevantly:

   … It’s clear the drugs have got the better of you since you’ve been in Australia. You were on suspended jail sentences, there is no reason to excuse a breach of those bonds accordingly  I’LL REVOKE THE S 12 BONDS, CONFIRM THE SENTENCE OF IMPRISONMENT OF SIX MONTHS. [Emphasis in original]

   Parramatta Local Court

3. Before the local Court at Parramatta on Monday 8 July 2019 Magistrate T. Keady, when sentencing the applicant for 11 offences, 10 of which related to larceny and one of participating in a criminal group contributing to criminal activity said relevantly:

   it is clear that (applicant) was a knowing, willing participant in a criminal enterprise which involved a substantial degree of planning and preparation…

   It is also significant that the offences represent ten discrete occasions of criminal misconduct, which extends over a period of months, commencing in December 2017 and extending towards the end of February 2018, so participation cannot be put down to some kind of spontaneous act to require sustenance for an infant…

   I note the submission put to me. [The applicant] has come to this country from another, ostensibly to create a better life for himself in a country that was more congenial to him; and yet it seems as though he has done nothing other than commit offences against the community in which apparently he seeks refuge. His future status in this country will be a matters  for others to determine, but in the short term, as I said, there is no alternative than to serve the sentence which I’m about to announce.

   Thereafter the sentence was imposed as referred to in the schedule.

   District Court of New South Wales, Criminal Jurisdiction

4. Before the District Court of New South Wales, Criminal Jurisdiction on Monday, 2 September 2019, the Court heard an appeal by the applicant in respect of sentences imposed by   Parramatta Local Court. The District Court confirmed the convictions but rectified a technical error in the sentencing  in respect of the matters dealt with in the Local Court set out above.

   Issues for determination

5. The issue for determination is whether the discretion of the respondent miscarried in relation to the refusal to grant the applicant the visa.

6. The Tribunal now turns to assess the primary considerations as relevant.

   primary considerations

   primary consideration A: Protection of the Australian community from criminal or other serious conduct
   
   

7. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:

   1. When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

8. Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.

   Nature and seriousness of the conduct

9. The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the applicant was sentenced on 3 October 2018 related to several offences, and the chronology of offending records that whilst the applicant had been convicted and a suspended sentence imposed, he failed to comply with the requirements for the conditions of suspension of such sentence. His other conduct, showed that he was prepared to evade police and the law enforcement authorities. The crimes for which the applicant was convicted and sentenced on 8 July 2019 were calculated dishonesty extending over many months and arose out of his participation in a criminal gang.

10. The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:

    (a)the offences in respect of which the applicant was convicted relates to illicit drugs;

    (i)The records of the International Health and Medical Services records at the applicant is a user of significant drugs including heroin and ice. In fact the applicant had admitted to smoking both on 5 October 2021 whilst in prison. The offences show a disregard for the law and the safety of the community….

    (b)The level of seriousness of the criminal offending is increasing as referred to hereunder

    Risk to the Australian community should the Applicant reoffend or engage in other serious conduct

11. The Tribunal has had regard to paragraph 8.1.2 of the Direction. The following facts are relevant to the Tribunal’s assessment:

    (a) the applicant has had a long history involving illicit drugs as is recorded in the police records. For example, an entry of 20 June 2016 records that the applicant was found in the company of others in a parked vehicle who were involved in the apparent sale of opium. A Court attendance notice was issued;

    (b) the applicant has had several instances involving traffic infringements: the records show that on 31 January 2017 he received a traffic infringement notice for disobeying a right hand turn sign; on 20^th of April 2017 he was found to be using a mobile phone whilst driving;

    (c) on 20 May 2017 a traffic infringement notice was issued for not wearing a seatbelt;

    (d) on 7 November 2017 the applicant was found in a vehicle with others where an admission was made that methamphetamine (“ice”) was used. The police records show that the applicant was driving a vehicle whilst his licence was suspended and that all the persons in the vehicle were well known as drug users;

    (e) on 3 February 2018 the applicant was apprehended and informed police he smoked opium and ice;

    (f) on 15 February 2018 the applicant failed to attend at a local Court and in consequence of a warrant was issued for his arrest;

    (g) on 27 March 2018 the applicant was apprehended driving a vehicle that a 150 km/h in a 90 km/h speed limit zone whilst he was being followed by police. The applicant was observed to change lanes across to other lanes of traffic into the path of a large’s semitrailer. The applicant held no driving licence as it had been suspended for non-payment of fines

    (h) on 13 March 2018 the applicant was found to be carrying drugs, namely ice, and stated to police that he took ice on a regular basis;

    (i) on 1 October 2018 the applicant was apprehended driving a vehicle. He pulled up his vehicle that as police exited from their vehicle to speak to the applicant he accelerated away at high speed as result of which a police pursuit occurred. He then left the vehicle and attempted to evade police. A struggle ensued and the applicant was apprehended. A white powder believed to be primitive drugs was located close to the vehicle;

    (j) On 17 July 2018 the applicant was apprehended for stealing in Woolworths store. Similar incidents were recorded in police records on several other occasions. The stealing extended over many months and involved the theft of baby formula, apparently for resale, in concert with other members of a criminal gang.

    Applicant’s Drug Use

1. The applicant has not disputed that he has used heroine and methadone for many years, and has repeatedly stated that he will never be involved in drugtaking again. In a statement he made when commenting upon charges before Parramatta Local Court on the 5 March 2020, he stated in writing:

   On a positive side, I was never like this before 2016 and this is quite a time and I have made a promise to myself hundreds of times in jail that I will never see that drug or anything that causes intoxication EVER AGAIN.  [Emphasis in original]

2. On 3 March 2021 he made a statement orally which was not prepared until 9 September 2021. In such statement the applicant states:

   I have a strong will and I have promised myself I will never put myself in a situation where my freedom will be jeopardised ever again. My time in prison has taught me a lesson that I will not engage in any further bad behaviour in the community.

3. Paragraph 2 of such statement provides:

   When I went to the medical staff at the VIDC, [Villawood Immigration Detention Centre] they put me on a methadone withdrawal programme and adjusted the dose to accommodate the stage I was out. Since I have been participating in the methadone program, I been feeling much better, and my reliance on drugs has been controlled and significantly reduced. I have improved a lot. Now I am at a stage that even if someone in front of me is using drugs, I do not feel the urge to join them.

4. Despite these statements, as recorded in the International Health and Medical Services (IHMS), records dated 5 October 2021 record that the applicant was using heroin and ice. By way of explanation for the relapse in October 2021, counsel for the applicant emphasised that the relapse resulted from the fact that there had been a change in his medication. In the applicant’s statement dated 11 July 2022 he states in paragraph 32:

   The last time I use drugs was in October 2021. I had remained free of drugs between September 2020 and October 2021, but relapsed on a small number of occasions in October 2021 after I change my treatment program from methadone to buprenorphine (“bupe”) at the end of September 2021. Methadone is very strong and bupe is a lot weaker. So when I first change from methadone to bupe , my body was not used to it. After about two weeks on bupe, I adjusted and I have been reducing my dosage of bupe.

5. Although there is no medical evidence to support any inference that the change in medication, which did in fact occur at about the time of the relapse, because the relapse, the Tribunal is prepared to accept that it may have been a factor in his relapse. The Tribunal was referred to the decision in Donnelly and Minister for Immigration 2019 FCA 798 at  [68] wherein the Federal Court of Australia emphasised the need for medical evidence if the Tribunal is to draw conclusions relating to medical conditions. In response the applicant distinguishes such decision on the basis that such decision was directed to diagnosis of an illness, rather than, as in the present case, whether the change of medication caused the applicant to relapse in October 2021.

6. The Tribunal concurs that the issue in this application does not rely upon a diagnosis but the circumstances which are very closely allied to it, namely whether the relapse was caused by a change in medication. The Tribunal accepts that there may have been some association between the change of medication and the relapse that otherwise makes no further finding.

7. However the IHMS records also record on 24 May 2022:

   Denies using any substance, reported sober for 3 months now.

8. The inference is clearly available that the applicant was continuing to consume intoxicating drugs until February 2022.

9. The applicant joined Narcotics Anonymous at the commencement of 2022 following a recommendation by another detainee who provided a statement in support of the applicant. The applicant states he attends meetings held for Farsi speakers and he has taught in practical ways to avoid drugs. The applicant stated for this reason he proposes to move to Canberra if he remains in Australia and to be remote from any of his former associates who were involved with drugs.

10. The applicant proposes to undertake work in Canberra and the witness, Friend E who resides and works in Canberra states that he would assist the applicant with finding short-term accommodation and work. However, there is no evidence that the applicant has ever visited Canberra; and the association between the applicant and Friend E arises only because the applicant worked with him in approximately 2015. Thereafter there was no contact with the applicant until Friend E was contacted by the applicant through Facebook requesting that he assist him in these proceedings. Friend E had heard that the applicant had become a drug user. However, in his oral evidence, Friend E stated that if the applicant resumed drugtaking, he would not be able to assist the applicant.

11. Another witness, Friend D who owns a labour hire business in Sydney had met the applicant in 2014 and had kept in contact “a few times over the years”. It appears that there are occasional Facebook Messenger contacts. This witness stated that the applicant “had stop taking drugs “ and that the applicant was a very reliable person. Friend D stated that he would try to find a place for the applicant in which to live.

12. The final witness called at the hearing, Friend A works in the construction industry and met the applicant approximately eight years ago through their work. This witness was aware of the criminal history of the applicant but states he would endeavour to obtain him work.

13. The remaining witness statements spoke of the good work ethic of the applicant but none suggested they had close association with the applicant over the past years.

    Finding on Primary Consideration A

14. Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.

    primary consideration B: Family violence committed by the non-citizen

15. Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

16. Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".

17. This consideration is not relevant as the conduct of the Applicant did not involve the use of violence.

    Finding on Primary Consideration B

18. The Tribunal finds that this consideration is neutral.

    primary consideration C: Best interests of minor children in Australia affected by the decision

19. Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).

20. This consideration is not relevant because the Applicant has no children and there is no evidence of any niece or nephew who may be in loco parentis with the applicant.

    Finding on Primary Consideration C

21. The Tribunal finds that this consideration is neutral.

    PRIMARY CONSIDERATION D: Expectations of the Australian community

22. Paragraph 8.4(1) of the Direction provides that:

23. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

24. Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)   acts of family violence; or

    (b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

    (d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)    worker exploitation.

25. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

26. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

27. This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.

28. It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

    Background to applicant

29. The applicant arrived in Australia by boat from Iran in 2013. He was initially accommodated in a detention facility in Queensland and was then relocated to Sydney. The applicant’s parents continued to reside in Iran, as do his two sisters. He has a brother residing in Sweden.

30. The applicant has held successive Bridging Visas, the first which was issued on 10 July 2014 thereby enabling the applicant to work. The applicant found employment in the demolition and construction industry. The evidence concerning his work history is vague, but it appears that he worked for approximately two years before he suffered an injury to his foot and his left finger. In consequence he became jobless and was required to leave his residence. He managed to find accommodation in a house which is soon to be demolished and lived there with other people who were drug consumers. He states that he commenced stealing so that he could buy food and drugs.

31. The records show that in March 2016 a Certificate of Baptism was Issued from a Christian Church to the applicant. The applicant states that he attended a church in the western suburbs of Sydney and that he has a follow-up of the Christian religion. During the Tribunal hearing it became apparent that the applicant had some basic understanding of the Christian faith, as he was able to identify the meaning of Easter and of Christmas. However, he was not able to state the name of the church which he claimed to have attended and it appears that his knowledge has been obtained from films. Having been asked whether there was a commandment that said something about stealing, the applicant applied:

    Yes, well I have seen in the movie that it’s (indistinct words) we should, that we should help our neighbours, and if we give money or help to somebody, we should not wait upon a return.

32. The applicant claims that he is remorseful for his conduct and says that all his criminal offending is related to his consumption of drugs, namely ice and heroin. He states that he had used such drugs in Iran before coming to Australia. He also consumed cannabis daily in 2015 for approximately a year. He states that he last took cannabis in January 2021. The applicant also states that he was influenced by bad company which led him to commit the crimes for which he received the sentence of imprisonment in March 2018.

33. The applicant’s criminal offending, for which convictions have been recorded were committed between December 2017 and October 2018. There are other entries in the records provided to the Tribunal, some of which are referred to above, which show that the applicant has been involved in drug and/or dealing prior to December 2017 but no proceedings have been taken in respect of such matters. There are also records of repeated traffic offences.

34. The applicant has not only a substantial criminal record, but whilst he has been in the care of the NSW Department of Corrective Services, incidents involving the use of force have occurred in which the applicant has assaulted another inmate. Further, whereas the applicant was employed in the kitchen and in maintenance, he was dismissed on 23 April 2019 he was thereafter employed in engineering and as a gate sweeper and was employed again in the kitchen but on 22 May 2019 was dismissed. The applicant claimed he was under the influence of drugs at the time of the incident involving the use of force.

35. In a statutory declaration subscribed on 2 May 2017 the applicant referred to his Christian religion which he has adopted and of his history in Iran. However. The Tribunal attaches little weight to such expressions in view of the fact that he has committed criminal offences after the date of his baptism into the Christian church and after the date of his statutory declaration. Such offences are contrary to the teachings of the Christian religion which the applicant claims to have adopted.

    Finding on Primary Consideration D

36. In this case, the Tribunal accepts that the Australian community’s expectations would weigh against revocation of the decision.

    Other considerations

37. The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.

    International non-refoulement obligations

38. The applicant has been assessed for non-refoulment obligations and the respondent acknowledges that this consideration weighs in the applicant’s favour. The applicant therefore faces the prospect of indefinite immigration detention unless another country can be located to which he may be resettled. The undesirable consequences of indefinite detention has been considered both by the Tribunal and by Australian courts. In Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3], Allsop CJ observed that in circumstances “where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people”.

39. The articles provided to the Tribunal on behalf of the applicant as referred to in [11] above graphically illustrate the hardships and probations experienced by those in detention. It should however be noted that the article entitled ‘Health professionals confront the intentional harms of indefinite immigration detention: an Australian overview, evaluation of alternative responses and proposed strategy’, speaks of conditions which are scarcely applicable in Australia. For example it states:

    Detention involves often overcrowded, unsanitary, overheated and dangerous environments, including exposure to physical and sexual violence; neglect, such as in adequate water, food and medical services, exposure to endemic self-harm, and humiliation/dehumanisation…”

40. There is nothing to indicate that such conditions are applicable in any detention facility in Australia. However, the Tribunal acknowledges that the deprivation of freedom is, in itself, a critical factor in weighing up the factors for consideration under Direction 90. The second article referred to namely ‘Seeking Asylum in Australia : immigration detention, human rights and mental health care’, refers to the behavioural disturbances, riots, self-harm and suicidal behaviour which the article states has become endemic in remote facilities.

41. The Tribunal notes that the fact that the applicant cannot be relocated to his country of origin. This is a factor which weighs  in favour of revocation of the decision.

    Extent of impediments to the applicant if removed from Australia

42. Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    othe non-citizen's age and health;

    owhether there are substantial language or cultural barriers; and

    oany social, medical and/or economic support available to them in that country.

43. The Applicant is now 35 years of age. There is no evidence that the applicant suffers from any ill health. As to the remaining issues, namely whether there are substantial language or cultural barriers and whether there are social medical and other economic support available, it is impossible to provide an assessment without knowing the country to which the applicant would be relocated.

44. The Tribunal finds that this consideration weighs minimally in the Applicant’s favour.

    Impact on victims

45. Paragraph 9.3(1) of the Direction provides:

    Decision-makers must consider the impact of the 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.

46. There is no evidence of any impact upon any other person. This consideration weighs in favour of the applicant

    Links to the Australian community

47. The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).

    Strength, nature and duration of ties to Australia

48. Under paragraph 9.4.1 of the Direction:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i)less weight should be given where the non-citizen began  offending soon after arriving in Australia; and

    ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Applicant has resided in Australia since 2013. The applicant has not married and has no family residing in Australia. The three witnesses who testified indicated that they would support the applicant. However, none of the witnesses appear to have had any continuing close and regular contact with the applicant since 2015. There is no evidence before the Tribunal of any other association with other persons although the applicant referred to the Christian church he claimed to attend and his acquaintances at the Narcotics Anonymous meetings.

2. Tribunal notes that the applicant has displayed his disregard for the Australian law as evidenced by the 26 convictions together with other matters that, whilst not resulting in a conviction, demonstrate an unwillingness to comply with Australian law. As stated in cl 8.4 (1) of Direction No.90:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

3. The applicant does not pass the character test as defined in section 501 (6) of the act in consequence of the applicant’s substantial criminal record: see section 501 (7) of the act. Whilst the traffic offences may appear to be trivial, the fact that they were committed displays the applicant’s attitude towards the Australian law: see Bartlett and Minister for immigration and Border Protection [2017] AATA 1561 at [45]. More importantly, on the basis that his criminal offending is related to drug use, the Tribunal has no confidence that he is now cured of his drug addiction. As such, whilst no violent crimes have been committed by the applicant, the Tribunal is satisfied that there remains a risk to the Australian community if his visa application is allowed that the applicant will resort to drugs in the future and once again fall into undesirable company. The applicant’s statements of remorse do not satisfy the Tribunal that he would not resort to drug use. Nor does the Tribunal accept that the fact that the applicant has been on an opioid replacement program whilst in detention has the consequence that the applicant will be drug-free in the future. It is clear that drugs make the applicant violent and angry, as he concedes and remains a danger to the Australian community. The applicant acknowledges that his violent incidents in detention have resulted from his drug use.

4. The applicant submits that his offending was carried out over a short period and that there has been no trend of increasing seriousness. The Tribunal does not accept the last submission in view of the fact, as evidenced by the sentencing remarks, the offending resulting in the theft of baby formula was calculated and carried out over a space of several months in concert with a criminal  conspiracy. The applicant became embroiled with a gang of persons from his own country and they jointly participated in planned criminal conduct.

5. Direction 90, para 5.2 (3) relevantly states:

   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

6. Clause 5.2 (4) of the Direction provides that Australia has a “low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa”.

7. Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to have a neutral impact on the original decision.

   Impact on Australian business interests

8. This consideration is not relevant in this matter.

   Conclusion

9. The issue in these proceedings is whether the Minister’s discretion to refuse the visa has miscarried. In determining this question, Tribunal considers that the critical matters for consideration is the risk that the applicant could pose a danger to the community in the future. The Tribunal must have regard to the future when determining whether the applicant should remain in Australia.

10. Visa refusal or revocation is an administrative action which is available to the Minister in the event that he considers that the applicant does not satisfy the requirements to hold a visa. Whether that threshold is reached is to be determined on the balance of probabilities.

11. Buchanan J in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [192] said relevantly:

    … the discretion to be exercised under section 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.

12. It should also be observed that visa cancellation is not a form of punishment for past events. In Folau v Minister for Immigration and Border Protection [2016]FCA 1149 at [11]  Pagone J relevantly stated:

    It is well-established that the Minister cannot regard these are cancellation as a form of punishment for past events.

13. However the interests of the Australian community are paramount.

14. Primary consideration A and D weigh against revocation, and Primary considerations B and C are neutral. Of the other considerations, the most significant consideration is the issue of non-refoulment. However the Tribunal is not satisfied that this outweighs primary considerations B and C, and the Tribunal is not empowered to weigh the consequences of the applicant’s criminal conduct against of fact that the applicant may face the prospect of indefinite immigration detention.

Decision

1. For these reasons, the Tribunal is satisfied that there is no error in the Minister’s decision.

2. The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

……………...[sgd].........................

Associate

Dated: 1 September 2022

Date of hearing: 15 and 16 August 2022

Counsel for the Applicant: Ms Alison Hammond, Sixth Floor Selborne/Wentworth Chambers

Solicitors for the Applicant: Ms Vicky Chen, Ms India Bennett, Ms Alison Ryan,  Refugee Advice & Casework Service

Counsel for the Respondent:  Mr Paul d'Assumpção, Howard Zelling Chambers

Solicitors for the Respondent: Ms Sarah Hardie, HWL Ebsworth Lawyers