YTNP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2778

YTNP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2778 (5 September 2023)
Division: GENERAL DIVISION
File Number: 2023/4260
Re:YTNP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:5 September 2023
Place:Sydney

The reviewable decision is set aside and in substitution the decision is made not to exercise the discretion conferred by section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa.
................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – Safe Haven Enterprise (Class XE) visa – refusal to grant visa because applicant did not pass the character test – whether discretion under 501(1) should be exercised to refuse the application – Ministerial direction no.99 – protection of the Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision set aside
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TRHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 5253
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Department of Foreign Affairs and Trade Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) dated 14 January 2022
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
5 September 2023

The Applicant, YTNP, was born in Afghanistan in December 1993. He arrived in Australia by boat in August 2012 as an unaccompanied minor. He has applied for review of a decision made by a delegate of the Respondent Minister on 23 May 2023 to refuse to grant him a Safe Haven Enterprise (Class XE) Visa (SHEV).
The delegate exercised the discretion under section 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse the Application because the Applicant failed the character test under section 501(6)(a) of the Act because he has a substantial criminal record, that is, he has been sentenced to a term of imprisonment of 12 months or more.[1]
Issues
That the Applicant does not pass the character test is not in dispute.
The issue to be decided is whether the discretion should be exercised to refuse the visa application having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to refuse a visa under section 501(1) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in making its decision.
The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct the applicant has engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)the expectations of the Australian community.
The decision-maker must also take into account the “other considerations” set out in Direction 99 where they are relevant. Those considerations include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The relevant considerations that arise on the evidence in this case are the primary considerations (a), (c) and (e), and the ‘other considerations’ (a) and (b).
Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[2]
Primary considerations
Protection of the Australian community
There are two considerations in relation to the protection of the Australian community:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community, should the non-citizen commit further offences.
The nature and seriousness of the non-citizen’s conduct to date
To put the Applicant’s criminal offending in context it is necessary to clearly understand when he was in the community and not in either immigration detention or prison. He was in the community during the following periods:
·3 December 2012 until 6 February 2014
·21 September 2016 to 17 January 2019
·13 February 2020 until 15 August 2020
·24 February 2022 to the present.
His offending was dealt with in a Local Court in New South Wales unless otherwise specified.
The Applicant’s criminal offending began on 21 January 2014 when he committed three larceny-T2 offences for which he was sentenced on 19 March 2014 to section 10 bonds for two years.[3] That means that he was found guilty but no conviction was entered on condition that he entered a good behaviour bond for two years. He was in immigration detention for the duration of the bonds and did not breach them.
The Respondent submitted that a ‘critical’ incident that occurred in immigration detention on 7 September 2014 reflected that the Applicant was violent. There was a physical altercation which resulted in some scratches, abrasions, bruises, a cut and pain to the other detainee’s face, neck and ear and some swelling to the Applicant’s head. This incident occurred about nine years ago. The matter was referred to the Australian Federal Police. The incident report was closed. The Applicant has not been involved in any similar incident.
He left immigration detention on 21 September 2016 upon the grant of a Class XD Subclass 785 – Temporary Protection Visa (TPV) that was to cease on 21 September 2019.
While in immigration detention or shortly after being released in 2016, the Applicant suffered an injury to his lower back which caused pain.
The Applicant sought treatment for his lower back pain from a General Practitioner who prescribed fentanyl, a highly addictive drug. At some stage, the doctor refused to prescribe fentanyl. The Applicant was addicted and sought alternative sources of it and resumed offending to obtain the means to acquire it. His addiction does not explain his 2014 offending. The explanation offered by his counsel was that he was young.
The Applicant reoffended on 26 May 2017 and was convicted, with no other penalty, of one offence of larceny value <=$2000 and one offence of goods in personal custody suspected being stolen (not m/v) on 28 June 2017. On 5 October 2017 he was convicted, with no other penalty, of one offence of shoplifting value <=$2,000-T2 committed on 28 September 2017.
Before addressing later similar offences and more serious offences, I note that on 13 August 2018 the Applicant was convicted of the offences of Enter/leave restricted area not process ticket – adult and Not state name or address to an authorised officer, with no other penalty.
The first time the Applicant was sentenced to section 9 bonds[4] was 9 March 2018 when he was convicted of offences committed in August 2017: two Shoplifting value <=$2000-T2 offences committed on different days, and one Assault occasioning actual bodily harm-T2 which was committed in the context of the first shoplifting offence. A section 9 bond was imposed in each case and fines of $500 and $700 imposed for the shoplifting offences.
On 13 August 2018, one of the shoplifting offences and the Assault occasioning actual bodily harm-T2 offence were called up. The court also dealt with the following offences: one Shoplifting value <=$2000-T2, four Larceny value <=$2000-T2, one Common assault-T2, three Goods in personal custody suspected being stolen (not m/v), and one Possess prohibited drug. A two year section 9 bond was imposed in each case. The Common assault offence was committed on 2 June 2018.
The common assault offence and the Assault occasioning actual bodily harm are the only violent crimes the Applicant has committed. Both were in the context of shoplifting. The common assault occurred when the Applicant was stuck between closing doors and swung a cooler bag at the security guard. The Assault occasioning actual bodily harm was the Applicant biting the arm of a security guard and drew blood when the security guard had chased the Applicant and had his arm around the Applicant’s neck.
On 21 September 2018 the Applicant was convicted of Shoplifting value <=$2000 and sentenced to a section 9 bond for 24 months.
On 29 April 2019, that offence and the following other offences were called up: the Assault occasioning actual bodily harm T-2, three Shoplifting value <=$2000-T2, the Common assault, four Larceny value <=$2000-T2, three Goods in personal custody suspected being stolen (not m/v), and one Possess prohibited drug.
In addition, the Court dealt with the following new offences: Shoplifting value >$2000 & <=$5000, two Shoplifting-T2.
The Court revoked the bonds and imposed an aggregate sentence of 18 months imprisonment commencing 17 January 2019 when he was taken into custody, concluding 16 July 2020, with a non parole period of 10 months, concluding 16 November 2019.
The sentencing magistrate said that the common assault offence was ‘quite minor and objectively very much at the lower end of objective seriousness’ but found the Assault occasioning actual bodily harm was ‘more serious but, again, below mid-range of objective seriousness’.
The sentencing magistrate made the following observations. The Applicant was unemployed and receiving Centrelink benefits. He has never been employed in Australia. The pre-sentence report or sentencing assessment report indicated that the Applicant acknowledged that there was a correlation between his illicit and non-prescribed substance abuse and his offending, he had been assessed as having a medium risk of reoffending, was suitable to undertake community service work, and had undertaken a satisfactory standard of 20 sessions of an addiction support program while in custody.
The sentencing magistrate was guarded about the Applicant’s rehabilitation because some previous supervision had been terminated due to compliance but others had been subject to breach due to failure to make contact with Community Corrections and his previous history of similar offences.
By letter dated 6 June 2019, the Applicant was notified that his TPV had been cancelled. He was in prison at the time. He applied for revocation of that decision.
On 14 June 2019, the NSW District Court allowed a severity appeal in respect of the 29 April 2019 matters, confirmed the convictions and imposed an aggregate term of imprisonment for 16 months, expiring on 16 May 2020, with a non parole period of eight months, expiring 16 September 2019, and confirmed a compensation order.
On 28 August 2019, the Applicant was sentenced to imprisonment for one month commencing 17 August 2019 and concluding on 16 September 2019 for the offence of Larceny value <=$2000-T2.
He was released from prison and taken into immigration detention on 16 September 2019 and released into the community on 13 February 2020 on a bridging visa.
On 20 January 2020 the Applicant was sentenced to a community corrections order for 12 months commencing 20 January 2020 for the offence Larceny-T2 that he had committed on 15 January 2019.
By letter dated 6 February 2020, the Applicant was notified that the decision to cancel his ‘Class XE Subclass 790 Safe Haven Enterprise visa’ had been revoked. The letter included a stern warning that if he continued to offend his ‘visa can again be cancelled and you may be excluded from Australia permanently’ and that the warning could be taken into account in any future decision on his visa should he reoffend. It summarised his ‘serious criminal history’ and his drug abuse issues.
The letter said that his visa had ‘naturally’ ceased and that he would have to speak to his Status Resolution Officer in relation to further visa options.
The Applicant was in immigration detention when he received that letter. In his written evidence, he accepted that he had been cautioned and was deeply sorry for not heeding that warning. During his oral evidence he denied being aware of the warning. He said that he just asked other detainees what it said. It is not in dispute that his English, written and spoken, is very limited. An interpreter assisted the Tribunal during the hearing. I accept that he was not specifically made aware of the warning when he received the letter. I infer that he and other detainees were interested in the main message that his visa had not been cancelled. However, given the process he had engaged in before the decision was made, he was on notice that criminal offending may result in his visa being cancelled.
On 11 March 2020, the Applicant applied for the SHEV.
On 18 August 2020, the larceny offence committed on 15 January 2019 was called up and the court dealt with another three such offences that had been committed on 1 May 2020. The Applicant was convicted of the four Larceny value <=$2000-T2 offences and sentenced to imprisonment for eight months commencing 18 August 2020 concluding 17 April 2021, with a non parole period with conditions of four months concluding 17 December 2020.
The Applicant has not offended since 1 May 2020.
On 12 October 2020, the District Court of New South Wales varied the term of imprisonment of eight months to commence on 15 August 2020 concluding 14 April 2021 with a non parole period of four months commencing 15 August 2020 and concluding 14 December 2020.
The judge said the following. The January 2019 offence was committed with an unknown male and involved placing into a trolley a number of tins of baby formula valued at $742. The May 2020 offences involved a number of items of clothing valued at between $49 and $15. Each offence was ‘well below the middle range of objective seriousness’ and there appeared to have been ‘little planning’. The Applicant’s criminal history contained a number of similar offences of shoplifting or larceny. The Applicant was subject to conditional liberty at that time of the January 2019 offences and was on a Community Corrections Order and on parole at the time of the May 2020 offences. The sentencing assessment report stated that the Applicant showed remorse and claimed that he needed the money for medical expenses. He engaged in drug and alcohol counselling and maintained regular contact with Community Corrections prior to the reoffending. He attended the Drug and Alcohol Multicultural Education Centre (DAMEC) on 23 March 2020 for assessment but reoffended in May 2020. The appeal was primarily based on the claim that he needed to obtain medical treatment for his health conditions which he cannot obtain in custody but there was no evidence to satisfy the judge of that.
The Applicant’s offending has not escalated. He has not committed a violent offence since 18 June 2018. His repeated offending was in the context of his addiction which was the unfortunate consequence of medical treatment. His evidence about the last time he used fentanyl is conflicting. I find that the last time he used fentanyl was before he went to prison in August 2020. While in a correctional centre in Sydney he cut off contact with the person providing him with fentanyl and was placed on a methadone program while there but was unable to access such a program after he was moved to an immigration detention centre in another state which was ‘making life extremely difficult’ for him. He also offended to buy food.
The Applicant was taken back to immigration detention on 14 December 2020 and released on 24 February 2022.
On 6 December 2021, the applicant was sent a notice of intention to consider refusal of the visa under s 501(1) of the Act.
On 31 January 2022 and 14 April 2022, the applicant provided a response to the notice.
On 23 May 2023 the visa refusal decision was made and his bridging visa revoked. The Applicant has remained in the community.
He has not reoffended since he was released into the community on 24 February 2022. It seems that he did not access a program similar to the methadone program he was on while in the correctional centre in Sydney in 2020 again, until he attended Royal Prince Alfred Hospital in February 2023.
The risk to the Australian community, should the non-citizen commit further offences
The nature of the harm should the Applicant reoffend includes financial harm to members of the Australian community and physical harm to security guards whose job it is to try to prevent the kinds of offending the Applicant has committed.
The Applicant remains at a moderate risk of offending. That was the opinion of Dr Bruce A Stevens, clinical and forensic psychologist, who assessed the Applicant’s risk of reoffending as moderate if compared to offenders. Dr Stevens assessed the Applicant on 2 August 2023 and wrote the Mental Health Assessment dated 3 August 2023.
Dr Stevens’ opinion that if the Applicant reoffended, his offending ‘would most probably’ be of a similar kind to his past offending, supports my finding at [49]. He also observed that there has been no escalation in the seriousness of the Applicant’s offending.
The first time the Applicant disclosed his use of ice (crystal methamphetamine) was to Dr Stevens when he told him that he had used ice ‘yesterday and the day before’. Subsequently he addressed his use of ice in his statement dated 8 August 2023.
Dr Stevens believed that the Applicant meets the DSM 5 criteria for the following psychological disorders:
·Major Depressive Disorder recurrent with moderate to severe symptoms;
·Post Traumatic Stress Disorder with moderate symptoms;
·Opioid Use Disorder moderate.
In Dr Stevens opinion the Applicant is a highly vulnerable person who has a history of trauma, chronic pain, and mental illness. To cope, he has self-medicated with drugs such as fentanyl and recently ice. Dr Stevens reported that the Applicant had not used fentanyl for the last four years.
Dr Stevens assessed that there could be slight reductions of the Applicant’s moderate risk of reoffending if he stabilises on methadone and completely refrains from any use of recreational drugs, had stable accommodation, was allowed to find employment, and totally avoid any association with drug-using associates and if he achieved all those, it would reduce risk from dynamic factors (which can change in the future) ‘possibly’ to an overall risk assessment of low to moderate.
Dr Stevens considered that the risk to the community from the Applicant reoffending would reduce with each year passing without reoffending and if that were so for a period of five years, he would consider reducing his risk assessment to low.
After his bridging visa was cancelled when the SHEV was refused on 23 May 2023, the Applicant has been in the community without a visa and therefore had no financial means. He was sleeping on a sofa in the loungeroom of a ‘friend’ who used ice. He was able to have one meal a day provided by the Asylum Seekers Centre.

At the time of the hearing, the Applicant was still using ice, although he claimed not to have used it since before he spoke to Dr Stevens, about three weeks before. In his most recent statement he said he was using ice less frequently, once or twice a week, to self-medicate.
The IHMS records show that the Applicant sought assistance for his mental health while in immigration detention. He discussed seeing a psychiatrist on three occasions between 4 October 2021 and 24 February 2022. IHMS records show that an appointment was made on 7 March 2022 but was cancelled because the Applicant was released into the community on 24 February 2022.
The Applicant was referred to Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) by the Jesuit Refugee Service on 1 April 2022 and was put on their waiting list. He has been regularly attending for counselling since the end of 2022. He has been attending Royal Prince Alfred Drug Health Service (RPA) since 27 February 2023 and had attended 11 appointments until 5 July 2023. He is currently receiving monthly injections for his opioid addiction.
The Applicant has expressed shame and remorse for his offending. I accept that he is genuine. He has not attended a mosque and had not told his brother for that reason. The Applicant is Hazara and a Shia Muslim and is so recognised by the Kateb Hazara Association of NSW.
The Respondent contended that the Applicant’s current circumstances of homelessness and drug use are similar to the circumstances which he asserts contributed to his offending. His use of ice is of concern. He uses it because of his physical pain and mental health. He has difficulty sleeping. He started using ice in 2018 or 2019. He has had difficulty accessing medication for his conditions from doctors so that he does not need to use ice. He acknowledged that it was important that he stop using ice and not use fentanyl. There is no explanation why the Applicant has not been returned to immigration detention since his bridging visa was cancelled. I infer from the Applicant’s evidence that he wishes to remain in the community to continue to access drug and mental health assistance from RPA and STARTTS respectively despite being homeless and having no financial means.
His brother has said that he will provide the Applicant with emotional and financial support and accommodation which would require the Applicant to move to another state, which he says he will do. That would be beneficial, including because it would remove him from the people who supplied him fentanyl and ice but would also remove him from his established support from RPA and STARRTS. He would have to establish new connections to maintain his treatment of opioid addiction and support for his mental health.
That the Applicant has not reoffended since 24 February 2022 does show his high motivation to avoid going back to gaol or immigration detention, particularly because he did not have treatment for his opioid addiction until February 2023 and has not used fentanyl since returning to gaol in 2020. He has not committed a violent crime for five years. He has been assaulted on a number of occasions while in the community and did not fight back. He has been a protected person under an Apprehended Violence Order (AVO) a few times. I accept that he is not a violent person. His violent offences were committed as a consequence of his property offences and described at [27].
In the assessment made under section 36(1C) of the Act, the delegate concluded that the Applicant does not pose a danger to the Australian community.
The Applicant wants to be safe from harm. He wishes to engage with an employment service to assist him to find suitable employment and to get his driver’s licence to assist him to do that to contribute to the Australian community. He would like to help people in a similar situation to himself. A motivating factor is his strong desire to see his mother. He became very distressed during his evidence when there was a reference to his mother. He intends to learn more about Australian society and culture to assist him to become more integrated into Australian life and he would like to improve his English. He acknowledges that he is not ready for a committed relationship because of his mental health but desires one day to marry and have children. He wants to be healthy in mind and body and would like to engage in physical exercise again and sleep better.
A SHEV is a protection visa which provides a permanent right to remain in Australia. On 9 November 2020, a delegate of the Minister found it was satisfied the applicant satisfied the criterion in s 36(2)(a) of the Act with respect to Afghanistan, and also satisfied the criterion in section 36(1C) of the Act.
If I do not exercise the discretion to refuse the SHEV, the Applicant will pose an ongoing risk of reoffending.
The protection of the Australian community weighs in favour of not revoking the reviewable decision.
The strength, nature and duration of ties to Australia
The Applicant arrived in Australia alone when he was 17 or 18 years old. I do not consider that is a young age. He has been found to engage Australia’s protection obligations and is therefore unable to return to Afghanistan. He has no legal right to enter and remain in Pakistan.
He has two brothers in Australia. One of his brothers gave written and oral evidence (W). He is prepared to assist the Applicant financially, emotionally and by providing a home for him which will require the Applicant to move to another state. The Applicant’s brother became very upset when he was asked how he would feel if he never saw the Applicant again. They communicate by text every few months according to W.
I do not accept the Respondent’s contention that W will not be impacted if the Applicant is refused a visa because W did not know about the Applicant’s offending and substance abuse until told by the solicitor acting for the Applicant in this case. As stated earlier in this decision, that was because the Applicant was too ashamed to tell W.
The Applicant initially indicated that he does not wish to burden his brother and wants to be in a better position physically and mentally before arranging to stay with him but will be in a better position to move to reside with his brother if he is granted a visa.
During the hearing, my impression was that the Applicant had reflected on the situation and is more likely to accept his brother’s offer sooner than he had previously indicated. I infer that his deep shame about his present physical and mental health was responsible for his initial reluctance.
If the reviewable decision is affirmed, W will be deprived of the opportunity to assist the Applicant as he wishes because the Applicant will be held in indefinite detention somewhere in Australia. It is likely that W will not be able to visit the Applicant in detention regularly or perhaps at all. W will be able to communicate with the Applicant by other means.
The Applicant said that the last time he tried to contact his other brother, the number had been changed and so he has not been in contact with him. The evidence does not enable me to make a finding about the impact on the other brother apart from observing that if the reviewable decision is affirmed, the Applicant’s brother is unlikely to have the possibility of seeing him in person in the future although they could communicate by other means.
The Applicant made submissions about his likely future contribution to Australia and referred to considerations in paragraph 8.3(4) of Direction 99 such as his young age when he arrived, without reference to any other ties that the Applicant has to the Australian community. Those submissions were not of assistance.
This consideration weighs in favour of revocation of the reviewable decision.
Expectations of the Australian community
Paragraph 8.5 of Direction 99 ‘is about the expectations of the Australian community as a whole’. Paragraph 8.5(4) provides that ‘Decision-makers should proceed on the basis of the Government’s views as articulated’ in paragraphs 8.5(1), 8.5(2) and 8.5(3), ‘without independently assessing the community’s expectations in the particular case’.
Paragraph 8.5(1) of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. As a norm, 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 expects the Government not to allow that person to enter or remain in Australia.
The Applicant has engaged in serious conduct in breach of this expectation.
The Applicant contended that this consideration should be given little weight in favour of affirming the reviewable decision because the Australian community would expect that a greater degree of tolerance would be shown to the Applicant for a number of reasons. As I understand Direction 99, I cannot independently assess the expectations of the Australian community. However, I take into account the matters the Applicant raised in deciding the weight to attribute to this consideration. They were:
·he was 17 or 18 when he arrived in Australia;
·He has spent 11 years in Australia;
·the nature and circumstances of his offending, including the relationship of his trauma, addiction and mental health to his offending conduct;
·the considerable period of time that has elapsed since his last offence;
·he has paid a substantial penalty already having served his period of imprisonment for his offending which occurred in the context of his multiple vulnerabilities
The Applicant has engaged in serious conduct in breach of the Australian community’s expectation that non-citizens obey Australian law while in Australia and therefore the Australian community, as a norm, expects the Government to not allow him to remain in Australia.
This is not a case where refusal of a visa is appropriate simply because the nature of his offences is such that the Australian community would expect that he should not be granted a visa.
The Applicant was a vulnerable individual as a result of the trauma and torture he had suffered before arriving in Australia in 2012. He committed three larceny offences for which he was sentenced to section 10 bonds with no conviction on 19 March 2014.
His offending from 2017 was the result of his fentanyl addiction which was caused by a general practitioner prescribing fentanyl for the back pain he suffered as a result of an injury that occurred when he was playing soccer. He committed crimes to enable him to obtain fentanyl.
The expectations of the Australian community weigh against granting the Applicant the SHEV.
Legal consequences
On 9 November 2020, a delegate of the Minister found it was satisfied the applicant satisfied the criterion in section 36(2)(a) of the Act with respect to Afghanistan, and also satisfied the criterion in section 36(1C) of the Act.
The Applicant is ‘covered by a protection finding’ as defined in section 197C of the Act.[5]
Section 197C(3) of the Act provides that section 198 does not require or authorise the removal of the Applicant to Afghanistan but he must remain in immigration detention unless he is granted another visa or can be removed to another country.[6]
If the reviewable decision is affirmed, the Applicant will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone unless the Respondent determines that section 48A does not apply to him and as a result of the refusal decision the Applicant will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa.[7]
The Respondent contended that ‘there is no realistic possibility of the non-refoulement obligations owed to the Applicant being breached’ by him being removed to Afghanistan and therefore very limited weight should be given to that possibility.
The Respondent accepted that ‘it is open to’ consider ‘the possibility’ that the Applicant will be indefinitely detained ‘at some point’ and that the matter weighed against affirming the reviewable decision but contended that the matter ‘should not carry overly significant’ weight because it is not ‘an inevitable outcome’.
The following authorities are relevant. In MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [55] Wigney J made the observation in the context of a mandatory cancellation decision that it would be:
…rather incongruous, if not somewhat bizarre, to think that there was a realistic possibility that the Minister would, on the one hand, vigorously oppose the revocation of the cancellation of the appellant’s visa on character grounds…yet on the other, decide not to exercise his discretion to refuse to grant the appellant another visa on character grounds…
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ) at [124] the Full Court of the Federal Court expressed a similar view when Kenny and Mortimer JJ observed:
…it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community…
At [123], their Honours observed:
The continued deprivation of a person’s liberty by reason of the operaƟon of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
The Applicant was homeless without financial means when Dr Stevens assessed him as a highly vulnerable person. Dr Stevens referred to the Applicant’s history of trauma, chronic pain and mental illness for which he self-medicated with fentanyl and recently ice. In Dr Steven’s opinion, the prospect of indefinite detention without prospect of release could possibly exacerbate his psychological disorders with some additional risk that he might become suicidal, although he has no history of suicide attempts. Indefinite detention could increase despair which might contribute to the risk of suicide.
Dr Stevens observed that there are some medical and other services in detention but there is a wider range of services available in the community, especially if the Applicant has a visa. He recommended a residential drug rehabilitation program which includes counselling with a focus on relapse prevention.
The Applicant’s established and ongoing engagement with RPA to address his opioid addiction and with STARTTS with respect to his mental health, or their equivalent in the state where his brother lives, is critical to the Applicant’s wellbeing and avoiding offending.
Extent of impediments if removed
The Respondent contended that this consideration should be given no weight because there is no realistic possibility that the Applicant will be removed to Afghanistan and cited cases in support of that proposition.
The Applicant cited the case TRHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 5253 at [159]-[168] where Senior Member Kirk gave weight to this consideration as well as to the prospect of indefinite detention because there was a prospect that the Applicant in that matter may return to Afghanistan voluntarily.
While unlikely, taking into account the Applicant’s evidence that he would not do so, that possibility cannot be discounted in the context of his mental illnesses, history of drug addiction and risk of suicide as set out by Dr Stevens. Further, the evidence is that ice which he is currently using, is readily accessible in immigration detention. It is possible that the Applicant may decide to return to Afghanistan. For that reason, I take this consideration into account but give it relatively little weight.
While the Applicant is relatively young, his health is poor. He is very vulnerable. He has no family in Afghanistan to support him. He would face substantial cultural barriers because he has not lived there since he was a very young child and he has spent more than a third of his life in Australia. There is no suggestion in the evidence that he would be able to access the supports he needs for his mental health and opioid addiction.
The most recent country information is that since the fall of Afghanistan to the Taliban in August 2021, Hazaras face a high risk of harassment and violence from the Taliban and IKSP because of their ethnicity and sectarian affiliation.[8] The letter from the Kateb Hazara Association refers to those circumstances.
Conclusion
The following considerations weigh in favour of setting aside the reviewable decision: the strength, nature and duration of ties to Australia, the legal consequences of the decision pursuant to section 501(1) of the Act, and the extent of the impediments the Applicant would face if he were to be removed from Australia.
The expectations of the Australian community and the protection of the Australian community weigh against setting aside the reviewable decision.
I have concluded that the considerations weighing in favour of setting aside the reviewable decision outweigh the considerations that weigh against doing so.
I have decided not to exercise the discretion conferred by section 501(1) of the Act to refuse to grant the Applicant a SHEV.
DECISION
The reviewable decision is set aside and in substitution the decision is made not to exercise the discretion conferred by section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) visa.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................................[sgd]......................................
Associate
Dated: 5 September 2023

Dates of hearing:

22-23 August 2023

Counsel for the Applicant:

Mr E Lovell-Jones

Solicitors for the Applicant:

Mr D Pereira, Refugee Advice and Casework Service

Solicitors for the Respondent:

Ms C Lewis, AGS

[1] Migration Act 1958 (Cth) ss 501(7)(c).

[2] Paragraph 7(1) and (2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].

[3] Crimes (Sentencing Procedure) Act 1999 (NSW) as it then was.

[4] A good behaviour bond imposed instead of a sentence of imprisonment.

[5] Direction 99, paragraph 9.1.1(1).

[6] Direction 99, paragraph 9.1.1(2).

[7] Direction 99, paragraph 9.1.2(3).

[8] Department of Foreign Affairs and Trade Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) dated 14 January 2022 at [3.4]-[3.5].

Dates of hearing:	22-23 August 2023
Counsel for the Applicant:	Mr E Lovell-Jones
Solicitors for the Applicant:	Mr D Pereira, Refugee Advice and Casework Service
Solicitors for the Respondent:	Ms C Lewis, AGS