YXLM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3002

YXLM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3002 (13 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5235
Re:YXLM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S. Webb, Member
Date:13 September 2022
Place:Canberra

The 22 June 2022 decision of the Minister’s delegate to refuse to grant YXLM a Temporary Protection (Class XD) visa is set aside. The matter is remitted to the Minister for further consideration of YXLM’s visa application with the direction the visa is not refused under s 501(1) of the Migration Act 1958.
…….[SGD]…..
Mr S. Webb, Member
Catchwords
MIGRATION – protection visa – character test – contested ground – risk visa applicant would engage in criminal conduct – past criminal conduct – mental illness – effect of prolonged detention – more than a remote risk – visa applicant fails character test – jurisdiction and power to consider other character test grounds – procedural fairness – requirement for notice – jurisdiction and power to consider grounds that were before the primary decision-maker – offence committed in immigration detention – discretion to refuse protection visa enlivened – Ministerial Direction No. 90 – primary and other relevant considerations – protection of Australian community from criminal or other serious conduct – expectations of the Australian community – non-refoulement obligations – legal consequence of decision a relevant consideration – adverse effect of indefinite detention on mental health condition – impediments to removal – strength of links to Australian community – balance of considerations weigh against exercise of discretion to refuse to grant a visa – decision set aside and remitted
Legislation
Acts Interpretation Act 1901 (Cth), ss 33(1)
Administrative Appeals Tribunal Act 1975 (Cth), ss 42, 43
Migration Act 1958 (Cth), ss 4, 5, 5AA, 36, 57, 63, 65, 189, 195A, 196, 197AB, 197C, 198, 499, 500, 501
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 32, 33
Cases
Assistant Minister for Immigration and Border Protection [2019] FCAFC 132
BHL19 v Commonwealth of Australia (No.2) [2022] FCA 313
Commonwealth of Australia v ALJ20 [2021] HCA 21
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs [2019] FCAFC 185
Madafferi v Minister for Immigration [2002] FCAFC 220
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434
Nathanson v Minister for Home Affairs [2022] HCA 26
NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174
Shi v Migration Agents Registration Authority [2008] HCA 31
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055
Stead v State Government Insurance Commission [1986] HCA 54
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
REASONS FOR DECISION
Mr S. Webb, Member
13 September 2022

The Applicant, YXLM, is an Iranian citizen who arrived in Australia by boat in 2012. In April 2016, he applied for a protection visa, but his application was refused on character grounds by a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister). It is in respect of this decision YXLM applied for review by the Tribunal.
Background
The following background facts are established by evidence before the Tribunal or are not contested and can be accepted as correct.
YXLM was born in 1988. He attended and completed school but did not progress to university. From a young age, he was actively engaged in competitive sport, including professionally within and outside Iran.
YXLM was raised in a Shia Muslim family. His family members remain in Iran. YXLM converted to Christianity and was baptised in Australia.
In Iran, YXLM held anti-government views and beliefs, and he participated in conduct, which led to him being surveilled, detained, threatened, lashed, violently assaulted and injured by Basij and Etella’at operatives on a number of occasions.[1]
[1] See YXLM’s claims in Documents provided under Section 501G of the Migration Act ‘G-Documents’, filed on 4 July 2022, G18, folios 178-179.
In 2012, he departed from Iran and travelled to Indonesia and then travelled by boat to Australia. He was an unauthorised maritime arrival under s 5AA of the Migration Act 1958 (Migration Act). From 25 November 2012 to 17 January 2013, he was held in immigration detention.[2]
[2] G15, folio 88.
On 17 January 2013, YXLM was released into the community. It may be accepted he was granted a visa but no details of this have been given to the Tribunal.
Thereafter, YXLM resided at several addresses in Melbourne and Sydney until 1 May 2015, whereupon he was again detained in immigration detention.[3] He was taken back into immigration detention having been charged and convicted of attending the Stocklands Mall in Merrylands in breach of banning orders issued consequent to a shop-lifting offence in 2014.[4]
[3] Ibid.
[4] Respondent’s Supplementary Documents, ‘S-Documents’ filed on 9 August 2022, S1 to S8; G12; see e.g., G6 folio 34 and G7, folio 36.
On 22 November 2015, YXLM signed an application for a protection visa, including the Australian Values Statement and the Declaration in Form 866B.[5] The fee for this application was paid on 4 April 2016.[6] Notices issued in respect of the application refer to it being made on 16 April 2016.[7] Absent evidence of any other protection visa application being lodged by YXLM or on his behalf, and with the concurrence of the parties, I accept the protection visa application was formally received as lodged on 16 April 2016.
[5] G17, folios 175-176.
[6] G17, folio 151.
[7] See e.g., G21.
I note an unsigned statement by YXLM attached to his protection visa application,[8] and written submissions made on his behalf on and after 26 September 2016.[9]
[8] G18.
[9] G19, G22, G23, G24, G25, G26, G27, G28, G29 and G31.
In all likelihood, YXLM’s protection visa application was considered and assessed by a delegate of the Minister on 20 October 2016. Records of this assessment have not been given to the Tribunal. In June 2022, the Minister’s delegate who decided to refuse YXLM’s visa application on character grounds stated:
67. I am aware the delegate who considered [YXLM’s] protection visa application made a protection finding for [YXLM]. The delegate was satisfied that [YXLM] satisfied the criterion in s36(2)(a) of the Act with respect to Iran. [sic] and also satisfied the criterion in s 36(1C) [YXLM] will be seriously harmed by the Iranian authorities as a failed asylum seeker with anti-government and anti-Islamic believes [sic], exacerbated by his mental illness and physical appearance including tattoos.
68. Having regard to the assessment completed by the Department on 20 October 2016, I accept that [YXLM] will be seriously harmed by the Iranian authorities as a failed asylum seeker with anti-government and anti-Islamic believes [sic]. Accordingly, I accept that YXLM is a person in respect of whom Australia has non-refoulement obligations.[10]
[10] G5, folios 29-30.
The parties informed me that these matters are not controversial.
On 7 September 2016, YXLM was again released into the community.[11] Once again, it may be accepted he was granted a visa at this time, although no documentary records of such a grant have been given to the Tribunal for the purposes of these proceedings.
[11] G15, folio 88.
Thereafter, YXLM resided at various addresses in Sydney until he was taken back into immigration detention on 13 February 2017.[12] He was taken back into immigration detention consequent to a Detention Application made in respect of a breach of bail on 8 February 2017, for which he was convicted on 9 February 2017.[13]
[12] G25, folio 204.
[13] S15, folio 26.
Since 13 February 2017, YXLM has remained in immigration detention.
On 26 October 2018, an officer of the Department of Home Affairs issued a notice of intention to consider refusal of YXLM’s visa application under s 501(1) of the Migration Act.[14] The notice stated:
The Department of Home Affairs holds information about your criminal history listed at the end of this notice, which suggests you do not pass the character test by virtue of s501(6)[d] of the Migration Act.
…
Before the decision-maker considers whether to refuse to grant you a visa, you have an opportunity to comment or provide information on whether you pass the character test, and on whether the decision-maker should exercise his or her discretion to refuse your application for a visa.[15]
[14] G21.
[15] Ibid, folios 189-190.
Subsequent notices were issued on 29 October 2018, 21 March 2019, and 8 October 2021 in respect of further information which may be taken into account when deciding whether YXLM’s Temporary Protection (Class XD) visa application should be refused under s 501(1).[16] Each of these notices referred to particular information and contained the following statement:
In a notice dated 26 October 2018 you were notified of the intention to consider refusing your application for a Temporary Protection (Class XD) visa under s501(1) of the Migration Act.
The notice advised you of the grounds on which a decision to refuse your visa may be based and the information that may be taken into account in considering whether to refuse your visa application. You were given the opportunity to comment on this material.
Since the notice was sent, some further information has been received which may be taken into account in considering whether to refuse your visa application under s501(1) of the Migration Act. A copy of this information is enclosed. You are invited to comment on this information…
[16] G22.
Written submissions were made on YXLM’s behalf by his legal representatives, including on 29 August 2018,[17] 15 February 2019,[18] 2 April 2019,[19] 21 January 2021,[20] 9 November 2021,[21] and 17 December 2021.[22]
[17] G23.
[18] G26.
[19] G27.
[20] G29.
[21] G28.
[22] G31.
YXLM gave oral evidence about his use of illicit drugs, including crystal methamphetamine (ice) since arriving in Australia. His uncontested evidence is that he was introduced to ice by friends in Sydney at a party in or about 2016. He asserts his friend told him ice was not harmful or addictive.
On 21 July 2017, Dr Ellis, a forensic psychiatrist, prepared a report of his examination of YXLM for the purposes of ss 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Mental Health Act). The doctor reported:
[YXLM] began drinking alcohol at the age of 15. He had a gradual increase in his use to almost every day in the period before his arrest [on common assault and other charges in February 2017]. He reports significant blackouts were [sic] he cannot recall events while drinking. He estimates prior to coming into immigration detention he was drinking one half a bottle of vodka every day.
He began using ice in 2016. He smokes this substance. He estimates he was using a gram everyday before he was arrested.
He denied use of other illicit substances, prescription medication abuse or problem gambling.[23]
[23] S18, folio 34.
On 2 August 2019, Yvette Aiello, a clinical psychologist employed by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), prepared a psychological assessment report in which she set out a history obtained from YXLM, including his account of delusions of hearing voices and paranoid thoughts which he attributed to “too much drinking and drugs”. [24] She reported:
He explained that by 2017 he was consuming up to one 700ml bottle of vodka a day as well as using cocaine and ice.[25]
… [YXLM] advised that he was upset because there were too many drugs available in VIDC [Villawood Immigration Detention Centre], though he said he had not used drugs for the past three months and has been undergoing drug testing which has also demonstrated this.[26]
… he may require specialist drug and alcohol counselling should this be a problem in the future.[27]
[24] G29.d, folio 390.
[25] Ibid.
[26] Ibid, folio 393.
[27] Ibid, folio 394.
On 20 June 2020, Laura Kilpatrick, a clinical health nurse, produced a report of an IHMS Special Needs Health Assessment in respect of YXLM. In the report, Ms Kilpatrick set out a history of YXLM’s mental health issues, including:
On 06 January 2020, [YXLM] reported to an IHMS GP that he had not used illicit drugs over the past week and that he was feeling positive about his health and had decided to stop using drugs. On 25 January 2020, [YXLM] reported during his scheduled drug and alcohol nurse consultation that he had not used drugs over the past two months. On 30 January 2020, [YXLM] reported that he wasn’t feeling well following illicit drug use the night before. [YXLM] reported that he was feeling paranoid and hearing voices… On 4 February 2020, [YXLM] attended a drug and alcohol nurse consultation and reported he wished to be transferred to Melbourne ITA due to reports of decreased drug availability at that centre.
On 10 March 2020, [YXLM] reported severe anxiety symptoms and suicidal ideas… [he] was admitted to the mental health unit at the Liverpool Hospital until 16 March 2020. [YXLM] denied using drugs prior to his admission, and a drug test was reported as negative…[28]
During his most recent mental health consultation on 11 May 2020 … [YXLM] reported that he was aware of the effect of illicit drugs on his mental health. [YXLM] was encouraged to engage with the IHMS team when he experienced cravings and agreed to ongoing follow-up consultations.[29]
[28] G29.f, folio 403.
[29] Ibid, folio 404.
YXLM’s oral evidence is that he has ceased attending drug and alcohol program in the Yongah Hill Immigration Detention Centre as he is not taking alcohol and he has no access to illicit drugs. He explained he is trying to exercise and considers himself to be reformed following heart surgery in May 2019.
Mental health
There is no dispute YXLM has a history of personality and mental health issues, although there is divergence of medical opinion as to the correct diagnosis of any psychiatric disorder.
On 21 July 2017, Dr Ellis reported YXLM has a history of psychiatric treatment and alcohol abuse in Iran prior which persisted in Australia.[30] The doctor diagnosed schizophrenia and substance abuse disorder, with no history of suicide attempts.[31] Dr Ellis confirmed the diagnoses in a subsequent report on 13 December 2017. On 10 January 2018, Dr Absalom, a consultant psychiatrist, reported diagnoses of Borderline PD (severe), Bipolar Affective Disorder Type 1, Polysubstance use and DSH (which I take to mean deliberate self-harm).[32] On 11 February 2018, YXLM was assessed in the Liverpool Hospital Emergency Department and the clinical notes include the following:
There is no evidence of major mental illness requiring admission. His suicidal thoughts are chronic in nature and related to his current circumstances and are therefore not amenable to change by admission to a MH unit. He will be discharged back to the care of the doctor at Villawood.
This man is a chronic risk of self harm due to his personality structure …[33]
[30] S18, folios 33-36.
[31] S18, folio 34.
[32] G26.a, folio 320; see also G25.c, folio 211.
[33] G26.b, folio 347.
On 25 April 2018, Dr Lienert, another consultant psychiatrist, reported:
Imp: Predominant diagnosis has been of personality disorder with a mixture of borderline, antisocial, narcissistic traits noted.; Previous diagnosis of Bipolar disorder but this is questionable given the lack of Fhx, late onset and coming in the context of drug use.; More likely to be a drug induced mania not a true Bipolar illness.; No current signs of mood disturbance.[34]
[34] Ibid, folio 296; see also folio 280.
In her 2 August 2019 report, Ms Aiello stated YXLM suffered from symptoms of depression, anxiety and PTSD due to his past traumatic experiences and his current predicament.[35] She reported:
[YXLM] spoke about experiencing many problems managing his feelings of anger and advised that he used to feel out of control of his behaviour and would react when upset by punching windows, cutting his wrists and attempting to suicide by hanging. He advised that these severe difficulties in managing his emotions began when he was placed in VIDC. However, he reported that one month ago he had a heart surgery, which changed his perspective on life and since then he has been more motivated to control his emotions and behaviour.[36]
[35] G29.d, folio 394.
[36] Ibid, folio 391.
Ms Aiello administered several psychometric tests and reported:
It is likely that [YXLM’s] scores on these measures are not an accurate reflection of his mental health concerns as it was observed that [YXLM] had difficulty comprehending the meaning of questions and further he tended to downplay his current difficulties in light of his optimism about creating a new, more positive future for himself.[37]
[37] Ibid, folio 394.
It was Ms Aiello’s opinion, even though YXLM’s mental health had improved as a result of him re-evaluating the importance of his life and ceasing illicit drug use following a heart operation in or about May 2019, he remained vulnerable and should his hope of release from detention not be realised this will have a detrimental impact on his mental health.[38] Ms Aiello recommended YXLM be provided with supportive counselling to help him manage his current symptoms of depression, anxiety and PTSD and his distress regarding his current detainment.[39]
[38] Ibid.
[39] Ibid.
YXLM attended psychiatric and medical consultations in 2020 (direct records of which are not in evidence), including a 24-hour assessment at the Liverpool Hospital on 7 April 2020. The available records suggest he had a chronic risk of harm to himself, misadventure and suicide that is not modifiable by hospital admission and he was suffering from acute exacerbation or chronic adjustment disorder with low mood secondary to ongoing and indeterminate detention.[40] Subsequent psychiatric evaluation was reported to be consistent with a Cluster B personality disorder.[41] Within the documents given to the Tribunal is a Departmental file note,[42] dated 21 April 2021, in which the following is recorded:
[40] G29.c, folio 380.
[41] Ibid.
[42] G30.
-    On 22 March 2021, Banks House at the Bankstown-Lidcombe Hospital documented ‘personality disorder with stressful situation leading to symptoms of anxiety and depressed mood, with capacity for self-harm.’
In addition to the above, since 02 August 2019, [YXLM] has been transferred to hospital on several occasions in the context of mental health concerns – the most recent transfer occurred on 11 March 2021 due to suicidal thoughts.
…
-    [YXLM] remains prescribed psychotropic medication (mirtazapine and olanzapine) which he takes nightly.
-    [YXLM] has scheduled GP appointments as required – with the most recent GP consult occurring on 3 March 2021.
-    [YXLM] is engaged with IHMS psychiatry services. He was last assessed by an IHMS psychiatrist on 11 March 2021 which resulted in a voluntary hospital transfer (discharged 22 March 2021).
-    [YXLM] is scheduled for nursing reviews as required – with the most recent attended nursing consult occurring on 22 March 2021.
-    [YXLM] remains scheduled for routine mental health reviews and screenings as per his IHMS care plans.
-    …
…on 22 March 2021, during IHMS mental health nurse review following hospital discharge, [YXLM] reported he is feeling better; and no acute mental health risks were identified.

Despite the divergence of diagnostic opinions, YXLM’s medical history includes repeated incidents involving threatened or actual self-harm while in detention from 2015.[43] For example, on 1 October 2018, YXLM sustained lacerations to his hands and cuts to his forearm after punch a window in the Villawood Immigration Detention Centre. The clinical notes record Patient states that he was frustrated at his predicament of being in a detention centre and not having a Visa so punched a window today.[44]
[43] See e.g., G14, folios 66-68, 70-73, 77, 86-87; G15, folios 94-96, G26.a folios 233-237, 316, 327 and 329; and G29.c, folios 379-380 and G29.d, folio 391.
[44] G26.b, folio 324; G15, folio 92.
There is also evidence YXLM caused damage to property and engaged in acts of violent frustration or anger in which he threatened or caused harm to himself or others while in detention.[45] The Minister asserts YXLM was involved in up to 46 incidents in the period from 6 May 2015 to 29 August 2021,[46] albeit conceding YXLM was the victim and not the aggressor in some of these incidents,[47] and others involved actual or threatened self-harm. The Minister notes, furthermore, YXLM’s prolonged detention has exacerbated his mental health condition and that his criminal record and history of self-harm and suicide attempts are directly linked to his experience in detention.[48]
[45] See G14, folios 74-76, 79-85; and G15, folios 90, 92, 98-99.
[46] G5, folios 22-23.
[47] See e.g., G15, folios 101-103.
[48] Respondent’s Statement of Facts, Issues and Contentions, filed on 15 August 2022, at [45], referring to G5, folio 31.
Criminal record
YXLM has the following criminal record:[49]
[49] G6, G7; S30.

Court Conviction date Offence Penalty

Fairfield Local Court 18 June 2014 Shoplifting value >=$2,000 – T2 Fine $500

Burwood Local Court 12 March 2015 Destroy or damage property Fine $1,000

Fairfield Local Court 20 April 2015 Remain on inclosed land not prescribed premises without lawful excuse Fine $200

Fairfield Local Court 29 April 2015 Remain on inclosed land not prescribed premises without lawful excuse Fine $350

Fairfield Local Court 21 December 2016 Resist officer in execution of duty – T2 Section 9 bond for 12 months

Fairfield Local Court 21 December 2016 Destroy or damage property Section 9 bond for 12 months

Fairfield Local Court 21 December 2016 Assault officer in execution of duty – T2 Section 9 bond for 12 months

Blacktown Local Court 16 February 2017 Destroy or damage property Fine $700

Fairfield Local Court 8 May 2018 Common assault – T2 Section 9 bond for 12 months

Bankstown Local Court 10 July 2019 Assault occasioning actual bodily harm – T2 18 months Community Corrections Order

I note a subsequent conviction on 6 May 2020 was subsequently struck from YXLM’s criminal record. There is no dispute YXLM committed the common assault offence of which he was convicted, the circumstances of which I will address below, or that he was released without sentence.
The offences for which YXLM was convicted on 10 July 2019 and 6 May 2020 related to incidents between detainees in the Villawood Immigration Detention Centre. The 10 July 2019 conviction was in respect of an offence committed on 23 March 2019 in which YXLM physically assaulted and caused actual bodily harm to another detainee.[50] The offence for which he was convicted on 6 May 2020 (which was subsequently struck from his criminal record by order of the sentencing magistrate and does not therefore form part of his criminal record) was in respect of an offence committed on 28 March 2019 in the context of an escalation of a verbal argument between detainees from Iran and Iraq.[51] Notably, YXLM entered guilty pleas in both cases. I note Magistrate Elks’ sentencing remarks when dealing with the 23 March 2019 offence, including in respect of the utilitarian value of the plea.[52]
[50] G9; S27, S28 and S29.
[51] G8, G10, G29, folio 365.
[52] G9, folio 50.
On 17 June 2022, a delegate of the Minister decided to refuse YXLM’s application for grant of a protection visa. The delegate stated:
The relevant ground of the character test in this case is:
S501(6)(d): in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia.[53]
[53] G5, folio 20.
It was the delegate’s assessment there is a risk YXLM would engage in criminal conduct should he be allowed to remain in Australia. The delegate was not satisfied YXLM passed the character test on the ground set out in s 501(6)(d)(i) and decided to exercise discretion under s 501(1) of the Act to refuse to grant YXLM a Temporary Protection (Class XD) visa.[54]
[54] G4.
The delegate’s consideration of this ground is consistent with the ground identified in the notice issued on 26 October 2018, which is expressly referred to in the notice of visa refusal issued on 22 June 2022.[55]
[55] G3, folio 10.
On 22 June 2022, YXLM was given notice of the delegate’s decision. The notice was sent by email to YXLM’s legal representative.[56]
[56] G3.
On 23 June 2022, within the 9-day period allowed under s 500(6B), YXLM lodged an application for review of the delegate’s decision.[57]
[57] G2.
Issues
The issues for decision in this review are whether:
(a)whether the Tribunal is satisfied YXLM passes the character test set out in s 501(6); and if not
(b)whether the discretion in s 501(1) to refuse his application for a protection visa should be exercised.
When deciding these matters, under s 499(2A), the directions issued by the Minister, namely Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), must be complied with.
I note in passing when Direction 90 commenced on 15 April 2021, Ministerial Direction No. 79, previously issued under s 499, was revoked. YXLM did not assert any accrued right in respect of the applicability of Direction 79 in these proceedings and, even had he done so, in the circumstances of his case, it is not established that any more beneficial result might be obtained.
Direction 90 sets out applicable principles in paragraph 5.2:
(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 noncitizens 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 noncitizens 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 types 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.
Character test
A person does not pass the character test if any one of the grounds set out in s 501(6) is made out in the particular circumstances of the case.[58]
[58] Direction no. 90, Annex A, section 1 – Discretionary visa cancellation or refusal, paragraph 3.
The Minister asserts there is a risk YXLM would engage in criminal conduct in Australia should he be allowed to remain. The risk is said to arise in the context of, among other things, his past criminal record, his mental health conditions and his record of involvement in incidents of violence and property damage while in detention. It is in respect of this ground, set out in s 501(6)(d)(i), alone, the Minister asserts YXLM fails the character test.
YXLM asserts there is insufficient evidence on which to make a positive finding there is a risk he would engage in criminal conduct in Australia should he be allowed to remain. In his submission, evidence of low-level offences he committed in particular circumstances in the past is not sufficient to establish a risk he would offend again in the future in different circumstances. He argues his mental health condition has improved with treatment and it is well-managed; he understands his previous mistakes and is remorseful for his past offending conduct, which he does not want to repeat; and his attitudes have changed for the better following heart surgery in 2019: he is grateful to the Australian government for saving his life and he wants to make a positive contribution in the future should he be allowed to remain.
The contested ground of the character test is set out in s 501(6)(d)(i):
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;
…
The Minister’s directions set out in paragraph 6, Section 2, Annex A of Direction 90 must be complied with. The thresholds to be applied in respect of conduct for the purposes of s 501(6)(d) are discussed in the following terms:
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
…
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
The direction to read criminal conduct in terms of a risk of the person engaging in conduct for which a criminal conviction could be recorded is not at large.
The risk of the person engaging in criminal conduct is to be construed in the legislative context in which the risk threshold is expressed and for the purposes of the Act. It requires a decision-maker to be satisfied there is such a risk.[59] This requires an evaluation of factors which are logically probative of a risk the person might engage in criminal conduct if they were allowed to remain in Australia.
[59] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2].
Risk is a chameleon-like concept which exists in a spectrum spanning faintest possibility and absolute certainty, where the nature and extent of any risk is coloured by circumstance. In the present legislative context, the threshold raised by the words a risk is not high. Without adjectival qualification, there is no requirement for the risk to be considered as significant or even probable. The threshold will be met if, on relevant probative materials, the decision-maker is satisfied the risk exists and there is more than a minimal or remote chance the person would engage in criminal conduct in Australia should they be allowed to remain.
While past offending by a person is integral to assessment of any risk of future offending, the evaluative assessment of such a risk requires more than inferential tendency reasoning alone based on the person’s criminal record: he did it before and he has a propensity to do this kind of thing, so he is likely to do it again.[60] The evaluation of risk in this context requires close consideration of the nature and circumstances of the person’s past conduct as well as evidence of their present circumstances which may bear upon any risk their past offending conduct might or might not be repeated.[61] This involves consideration of a range of inputs which fall short of criminality but may still rationally bear upon the assessment of whether a person “might” engage in criminal conduct in the future.[62]
[60] Assistant Minister for Immigration and Border Protection [2019] FCAFC 132, per Mortimer J with whom Moshinsky J agreed at [71]-[77].
[61] Ibid at [78].
[62] EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCA 1536 at [182].
It is the Minister’s submission YXLM’s history of violent offending when out in the community and his history of violent offending and involvement in incidents involving violence and property damage while in detention is sufficient to surpass the threshold in s 501(6)(d)(i), and for this reason YXLM does not pass the character test.
YXLM’s submissions relating to the absence of expert evidence squarely assessing the risk he would engage in criminal conduct in the future are not persuasive. When assessing risk for the purposes of s 501(6)(d)(i), absent expert evidence addressing the point, the pattern of YXLM’s past conduct may be a reasonable basis on which to assess his possible future conduct. As the majority said in Minister for Immigration and Ethnic Affairs v Guo at 57:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[63]
[63] [1997] HCA 22; (1997) 191 CLR 559.
For the reasons discussed below, I am satisfied there is more than a minimal or remote risk YXLM would engage in criminal conduct in Australia should he be allowed to remain, and for this reason he does not pass the character test.
It is not controversial and I am satisfied YXLM’s previous criminal conduct was related, in material part at least, to his mental health condition, to his failure to comply with the treatment regimen for that condition, to his use of alcohol and illicit drugs and to circumstances in immigration detention, including what Magistrate Elks referred to as a jungle mentality.[64]
[64] G9, folio 50.
I am satisfied these factors are instrumental in YXLM’s propensity to outbursts of emotion, anger, aggression and psychiatric symptoms, including delusions and paranoia. This is given expression in the record of incidents in which he was involved in immigration detention and in his record of offending conduct. I accept that YXLM was the victim and not the aggressor in a number of incidents which occurred during periods in which he was detained in immigration detention, and in other incidents YXLM engaged in acts of self-harm. Records of these incidents underscore the difficulty YXLM experienced regulating his emotions and his behaviour at those times. I also accept that YXLM experienced impecuniosity when he was released into the community and this may have been a factor in his shop-lifting offence in 2014. On the Facts Sheet placed before the Fairfield Local Court on 30 April 2014, YXLM was unemployed and paid $340 per fortnight in rent out of an income of $400 per fortnight.[65]
[65] S2, folio 2.
Considering the evidence on which these factors are established, a pattern is discernible in YXLM’s past conduct. This is not solely apparent in his criminal offences, but it is also apparent in many of the incidents in which he was involved in immigration detention. The pattern relates to his difficulty regulating his emotions and his behaviour. I am satisfied this difficulty is a consequence of his mental health condition, especially at times when he ceased treatment and he failed to seek or to comply with prescribed or recommended treatments for that condition.[66] It is also a result of his recurring use of illicit drugs, as recently as January 2020.
[66] See e.g., G26.a, folios 242 and 283.
YXLM’s past conduct occurred in the context of the history of trauma and abuse YXLM experienced in Iran (which is not contested). The weight of the psychiatric and psychological evidence is those factors are instrumental in his mental illness. No doubt he has encountered difficult circumstances since arriving in Australia, including separation from his family in Iran, exposure and likely addiction to illicit drugs, extended periods of immigration detention and the prospect of being held indefinitely in detention. These factors assist understanding of his mental health condition, his behaviours and his offending conduct but they do not mitigate any risk of future offending. YXLM’s mental health condition is likely to persist even should he be released from immigration detention, albeit in those circumstances it would no longer be adversely affected by the circumstances of his detention.
The nature of his past criminal offences also weighs in the balance when assessing the risk that he would again engage in criminal conduct. While the fact of his offending against Australian laws is a matter of general concern, his resort to aggressive behaviour and violence is of particular concern when evaluating the future risk of recurrence. The offences YXLM committed on 3 February 2017,[67] 23 March 2019,[68] and 28 March 2019,[69] involved aggression and violence. While the offences YXLM committed prior to March 2019 are at a relatively low level of severity, as Magistrate Elks observed on 10 July 2019 when sentencing YXLM for the assault occasioning actual bodily harm he committed in March 2019:
The facts themselves are certainly concerning and the concession that these are at about the midrange I would accept that that is the case.[70]
[67] See S14.
[68] See G9; S27 and S28.
[69] See G8 and G10.
[70] G9, folio 50.
In the result, the Magistrate took account of mitigating factors, including the circumstances of YXLM’s mental health condition and his immigration detention, and imposed an 18-month Community Corrections Order.[71] YXLM has not been sentenced to a custodial sentence for any offence.
[71] S29.
Presently, for the purposes of s 501(6)(d)(i), the sharp point of the concern is that YXLM’s offending behaviour is related to his mental health condition, his failure to comply with prescribed treatment and his use of drugs and alcohol. Considering the medical evidence and related assessments, including the reports of Dr Ellis,[72] Dr Absalan,[73] Ms Aiello,[74] Shan-lee Miller (a social worker),[75] Ms Kilpatrick,[76] and Milosu Luba (a Clinical Reporting Nurse),[77] I am satisfied that, should YXLM fail to comply with mental health treatments or engage in use of alcohol or drugs, the likelihood and risk of him engaging in criminal conduct increases. Should he be allowed into the community, in all likelihood, he will require ongoing treatment. His compliance with prescribed or recommended treatment will mitigate the risk of him reoffending. But here is the rub: the risk he would fail to obtain or comply with treatment to manage his mental health condition and the risk he would again resort to use of alcohol or illicit drugs are closely tied to the risk would engage in criminal conduct.
[72] G25.d, folios 216-217.
[73] G25.c, folio 212.
[74] G29.d, folio 394.
[75] G29.e, folios 399 and 400.
[76] G29.f, folio 404.
[77] G29.c, folio 382

YXLM’s evidence is that should he be released into the community he would reside with friends from Iran in Parramatta. He informed Dr Ellis that his friends did not use drugs.[78] No evidence has been adduced from YXLM’s friends, so the veracity of this remark cannot be tested. Nevertheless, should YXLM be released into the community, he would no longer be subject to the adverse effects of detention on his mental health, and he would no longer have ready access to the therapeutic supports available to him in immigration detention. Any engagement with support and health services, as recommended by Dr Ellis,[79] would be voluntary. In consideration of YXLM’s past conduct, and his repeated failure to comply with the recommended treatment regimen for his mental health condition, there are serious questions about whether he would be likely to obtain and adhere to the treatment he requires for his mental health condition, and whether he would continue to abstain from using alcohol and drugs in the face of pressures and stresses of life in the community. There is no evidence about YXLM’s financial circumstances, or his prospects of employment, should he be released. Nevertheless, it may be accepted, should he experience further impecuniosity or financial stress, this may increase the risk he would reoffend.
[78] G25.d, folio 215.
[79] G25.d, folios 216-217.
YXLM’s avowed remorse for past mistakes, which I accept is genuine, consistent with his ready guilty pleas for the offences he committed (noting Magistrate Elks comments about the utilitarian value of the plea entered in 2019),[80] is a factor which weighs against the likelihood of him engaging in criminal conduct in the future. In consideration of YXLM’s past failure to adhere to undertakings he gave to Dr Ellis about continuing with medical treatment, his present resolve is not a reliable measure of future risk he would engage in criminal conduct again.
[80] G9, folio 50.
Changes in YXLM’s circumstances that are established by evidence before the Tribunal, which I accept, are also relevant considerations that must be taken into account when assessing risk for the purposes of s 501(6)(d)(i). These include his increasing age and maturity, his efforts to abstain from drug and alcohol use, his gratitude to the Australian government for heart surgery which he considers to be life-changing, his assertion of a more positive attitude thereafter and his efforts in self-rehabilitation, as well as his improved compliance with treatment for his mental health condition. It can be accepted these factors may reduce the likelihood and the risk YXLM might again engage in offending conduct.
Weighing the available evidence on this point, I am reasonably satisfied there is a risk YXLM would engage in criminal conduct in the future and that the risk, albeit not great, is real. It is more than a trivial possibility or a remote chance. This means that the ground in s 501(6)(d)(i) is made out and YXLM fails the character test.
As a person fails the character test if any one of the grounds set out in s 501(6) is made out, it is not strictly necessary to proceed on to consider any other ground.
Nevertheless, in the circumstances of this case there is a legal question whether the Tribunal’s review is confined to the particular ground set out in s 501(6)(d)(i). As the parties made submission addressing this issue, it is desirable to address the question.
Tribunal’s jurisdiction to consider another ground
The legal question arises because there is uncontroverted evidence before the Tribunal which is relevant to a different ground than that expressly considered and decided adversely to YXLM by the Minister’s delegate, namely the ground set out in s 501(6)(aa)(i):
(6) For the purposes of this section, a person does not pass the character test if:
…
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
…
The evidence establishes YXLM was convicted of offences he committed on 23 March 2019 and 28 March 2019 while he was in immigration detention.[81]
[81] G8, G9, G10; S26 and S27.
These offences were committed after a notice informing YXLM of an intention to refuse to grant him a visa as he may fail the character test under the ground set out in s 501(6)(d) was issued on 26 October 2018. No change to this ground was expressly communicated in subsequent notices issued to YXLM on 29 October 2018, 21 March 2019 and 8 October 2021. Furthermore, the Minister’s case, including the Respondent’s Statement of Facts, Issues and Contentions given to YXLM and to the Tribunal prior to the hearing, raised no different ground of the character test in s 501(6) as relevant in the circumstances. It was on this understanding YXLM prepared his case.
In consideration of what the majority said in Uelese v Minister for Immigration and Border Protection (Uelese),[82] at the commencement of the hearing, I raised the issue of evidence relevant to the ground set out in s 501(6)(aa)(i) and the associated legal question about the scope of the Tribunal’s review, procedural fairness and what should be done. The hearing was briefly adjourned for the parties to consider these matters and, subsequently, submissions were made.
[82] [2015] HCA 15, per French CJ, Kiefel, Bell and Keane JJ at [43], [54], [57] and [75].
At this point I should say, as the 84-day period prescribed in s 500(6L) ends on 14 September 2022, I am concerned about the constraints time imposes on each party’s consideration of these matters. The evident discomfort each party expressed when addressing these issues leaves room for doubt that the issues, which are not easy to resolve, may not have been as carefully considered and fully addressed as each party might prefer with more time. Nevertheless, to the extent it is necessary to address these questions, I will do so.
YXLM submitted that the matter should be remitted for further consideration on procedural fairness grounds and grounds of insufficient evidence. The Minister questioned the Tribunal’s power to do so and argued, in any event, the Tribunal should not remit the matter.
In the circumstances, it is not necessary to consider the Tribunal’s remittal powers in any detail. While it may be possible for the Tribunal to remit the decision for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), doing so does not amount to a decision for the purposes of s 500(6L) of the Migration Act. Consequently, any remittal for reconsideration under s 42D would need to be completed within the period specified in s 500(6L) and with sufficient time remaining for the parties to be heard and for the Tribunal to make its decision should the proceedings continue. In the particular circumstances of this case, the hearing commenced 9 days before the end of the 84-day period specified in s 500(6L). Even if I had considered it desirable to exercise the discretion conferred under s 42D to remit the matter, and I was not of that mind, there was simply insufficient time in which to do so.
YXLM’s second ground for remittal relating to insufficiency of evidence must be rejected. Insufficiency of evidence relating to the character test in s 501(6) is not a proper basis on which to remit an application of this kind when it is for the visa applicant to satisfy the Minister (and, on review, the Tribunal) no grounds for failure are made out. If the evidence is sufficient to establish the threshold in any particular ground of the character test is met and applicant has not adduced sufficient evidence to satisfy the decision-maker a contrary finding should be made, then the Tribunal may find the applicant fails the test on that ground.[83]
[83] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434 at [14].
Two further propositions addressing the preliminary legal questions were advanced in the parties’ submissions, about which the parties were in substantial concurrence.
Firstly, it was submitted the issue was squarely considered and decided in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 (CPJ16),[84] in which Rares J said:
66. I am of opinion that the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker’s exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision.
67. … In its review of the delegate’s decision, it was open to the Tribunal to have regard to any conduct or circumstances affecting the question under s 501(6)(d)(i) that occurred or came to light after the delegate’s decision and up to and including the time of its own decision, in considering whether to exercise the discretion to refuse to grant the visa under s 501(1) if she failed the character test in respect of s 501(6)(d)(i).
[Citations removed.]
[84] [2019] FCA 2033.
This judgment was appealed to a Full Court: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 (CPJ16 Full Court).[85] By the time the Full Court came to hear the matter, circumstances had changed sufficiently for the Court to consider the substantive issues in the appeal moot, whereupon the Court decided not to proceed and dismissed the appeal. In its reasons, having considered relevant factors (which it is not necessary to repeat here) and explained why it was not appropriate to proceed with an advisory appeal in the circumstances, the Court said at [28]:
As such, even though we did not regard the decision of the primary judge to be self-evidently correct, we considered on balance that it would be not be appropriate to determine the correctness of that decision on these appeals.[86]
[85] [2020] FCAFC 87.
[86] Ibid at [28].
In consequence, the parties submitted, separately but in substantial agreement, the Tribunal is bound by CPJ16. Nevertheless, each party cavilled with the correctness of the construction of the legislation adopted in CPJ16.
Having heard and carefully considered the parties’ arguments, no salient or persuasive basis was identified, generally, on which the Tribunal could, or should, depart from the ratio in CPJ16. Certainly, in any case to which it relevantly applies, CPJ16 is authority by which the Tribunal is presently bound in respect of construction of the character test in s 501(6) and the scope of the Tribunal’s review of a decision under s 501(1).
Secondly and applying CPJ16, each party asserted the Tribunal had no jurisdiction to consider any character test ground other than that decided adversely to YXLM by the delegate, namely the ground set out in s 501(6)(d)(i). To consider any other ground, it was said, would amount to jurisdictional error.
When the parties were questioned about what the Tribunal should do when presented with uncontested evidence of direct relevance to the ground in s 501(6)(aa)(i), the only answer given, in effect, was that the additional ground should not be considered or decided for want of jurisdiction. Consequently, it was submitted the Tribunal probably has no power to make directions or to remit the matter for further consideration of the additional ground.
In order to address these submissions, it is necessary to determine if CPJ16 is applicable to the facts of this case. In order to do so, it is necessary to carefully consider the facts on which CPJ16 was decided and to closely read what Rares J said.
It appears to me, Rares J foresaw the possibility new factual matters might arise in a case and that new facts might be a sufficient cause to expand the scope of matters to be considered when applying the character test. His Honour discussed these issues in the following terms:
67. … In its review of the delegate’s decision, it was open to the Tribunal to have regard to any conduct or circumstances affecting the question under s 501(6)(d)(i) that occurred or came to light after the delegate’s decision and up to and including the time of its own decision, in considering whether to exercise the discretion to refuse to grant the visa under s 501(1) if she failed the character test in respect of s 501(6)(d)(i).
…
70. Accordingly, once the Minister or his delegate has decided that a statutory ground in s 501(6) exists, in respect of which an applicant has not satisfied him that he or she passed the character test, then the discretion under s 501(1) is enlivened. It would not fulfil the statutory purpose or be consistent with Shi [2008] HCA 31; 235 CLR 286 or Graham 263 CLR at 30 [57] that the grounds for the decision under review could be expanded in the review without any further new facts emerging. If the Tribunal, on a review, found that it was satisfied that a visa applicant had passed the character test, unless a new fact occurred subsequently, the delegate or the Minister could not revisit later every other ground or criterion in s 501(6) at will, while detaining the person in immigration detention under the authority of the Act for, relevantly, the purpose of determining whether or not he or she should grant the visa: cf. Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 206 [78]- [79] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
[Emphasis added.]
Similar questions, albeit arising in respect of s 501(2) and s 501A of the Migration Act and the re-exercise of power already exercised, were dealt with in Minister for Immigration and Border Protection v Makasa (Makasa).[87] The Court discussed the interaction of s 501(2) with the AAT Act and s 33(1) of the Acts Interpretation Act 1901 (Cth) (Interpretation Act) and concluded subsequent events or further information not previously before the Minister or a delegate may provide a different factual basis upon which to determine that a visa holder does not pass the character test.[88]
[87] [2021] HCA 1.
[88] Ibid at [48]-[55].
In CPJ16, the Minister sought to introduce a character test ground which had not previously been raised or considered (the ground in s 501(6)(c)) in addition to the ground decided adversely to the visa applicant (the ground in s 501(6)(d)(i)). The additional ground was pressed on the same facts, without new facts emerging in the circumstances of that case.
To that extent, CPJ16 is not entirely on all fours with the present case. On 10 July 2019 and 6 May 2020, YXLM was convicted of offences he committed while in immigration detention in March 2019 (although the latter conviction was subsequently struck from his criminal record). These offences and convictions occurred after notice was first given of the intention to refuse to grant him a visa applying the character test ground in s 501(6)(d)(i) on 26 October 2018. Subsequent to the convictions, on 8 October 2021, an officer of the Minister’s Department notified YXLM that:
The Department has received further information which may be taken into account when making the decision whether to refuse to grant you a visa. The information consists of:
-    Australian Criminal Intelligence Commission Check Result Report issued on 7 August 2020
-    Statement of Facts by the Australian Federal Police dated 6 August 2019
-    Immigration Detention Client Incident Report issued on 29 September 2021 (for the dates 17 January 2019 to 29 August 2021
-    Extract of Remarks on Sentence in The Local Court Bankstown dated 10 July 2019
-    Statement of Facts in the Local Court of NSW dated 5 May 2020
-    …[89]
[89] G22, folio 197.
These materials related to the offences YXLM committed on 23 and 28 March 2019 while he was in immigration detention.
The notice invited YXLM to comment:
PLEASE NOTE: … Any new information, including any submissions on the matters outlined above, may be provided in accordance with the below directions and will be considered by the decision-maker.
Invitation to comment
Before the decision-maker considers whether to refuse to grant you a visa, you have an opportunity to comment or provide information on whether you pass the character test and on whether the decision-maker should exercise his or her discretion to refuse your application for a visa.[90]
[90] G22, folio 199.
Clearly enough, the Minister considered the new factual information about the offences YXLM committed while he was in immigration detention in March 2019 to be relevant and that it would part of the reason for refusing to grant him a visa. The Minister’s 8 October 2021 notice did not set out any particular ground in the character test under s 501(6) to which the new factual information might be relevant, rather the reference to the character test was in broad terms. This notice did, however, refer to the previous notice issued on 26 October 2018, which made express reference to the ground in s 501(6)(d)(i), and invited comment about the new factual information. This notwithstanding, unlike CPJ16, the new factual information was unequivocally and obviously relevant to a character test ground additional to that originally specified in the notice on 26 October 2018, namely the ground in s 501(6)(aa)(i) relating to conviction of an offence committed while YXLM was in immigration detention.
On 9 November 2021, written submissions for YXLM were provided in response. The submissions squarely addressed the new information and the offences YXLM committed in immigration detention, as well as other matters traversed in the 8 October 2021 notice. It is notable that no submissions were made in respect of the character test – it was not asserted YXLM passed the character test, or that he did not fail it under any particular ground. No specific reference is made to the ground in s 501(6)(aa)(i) and any basis on which the delegate might be satisfied the new information does not cause YXLM to fail the character test on that or any other ground.[91] It is open to infer YXLM did not contest the assertion he failed the character test at that time.
[91] G28.
In these circumstances is it open to infer the delegate eliminated grounds other than that in s 501(6)(d) from consideration as they could not, or did not, arise, as Rares J found in CPJ16’s case?[92] One can immediately see the difficulty of proceeding to determine matters of this kind on the basis of inference. In the present case there is no firm basis on which to draw such an inference: the new information that was included in the notice issued on 8 October 2021 and the factual findings of the delegate were of direct relevance to the ground in s 501(6)(aa)(i), which could not then be eliminated as not arising. In the result, the delegate found YXLM failed the character test under the ground in s 501(6)(d)(i) and did not expressly decide he also failed the test under the ground in s 501(6)(aa)(i), although such a finding was open on the facts found.
[92] CPJ16 at [58].
The only basis on which that ground might not arise and be eliminated from consideration by the delegate is that the additional character test ground in s 501(6)(aa)(i) had not been expressly put to YXLM prior to finalisation of the delegate’s decision. This raises a question of procedural fairness and of the decision-maker’s power.
In this case, the starting point for consideration is the content of notices given to YXLM in the course of assessment of his visa application. Only one ground in the character test was specified in the notice issued on 26 October 2018 – ground s 501(6)(d)(i) in respect of the risk he would engage in criminal conduct in Australia, should he be allowed to remain. The notice issued on 8 October 2021 did not specify any particular ground or grounds on which the Minister considered YXLM would fail the character test – the invitation to comment was cast in broad terms in reference to the character test and the discretion to refuse to grant a visa. It is not clear if the Minister considered the new factual information provided for comment under that notice was relevant to the particular ground specified in the earlier notice issued on 26 October 2018, s 501(6)(d)(i), but that inference may be drawn, or if the new information was considered relevant to the ground relating to conviction for an offence committed while in immigration detention under s 501(6)(aa)(ii).

It is an important aspect of procedural fairness that a visa applicant has an opportunity to know the tests they must pass and the thresholds or case they are required to meet and, in particular, to have an opportunity to comment on and address relevant information the Minister considers a reason for refusing to grant the person a visa. Generally, subject only to considerations of materiality,[93] if a person is not informed of an important aspect of the case they need to make or meet, unfairness will result.[94]
[93] Nathanson v Minister for Home Affairs [2022] HCA 26; Stead v State Government Insurance Commission [1986] HCA 54.
[94] NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39, per Allsop CJ and Katzmann J at [5].
Nevertheless, under s 501(1), it is for YXLM to persuade the decision-maker he does not fail the character test. At the time of the 8 October 2021 notice, YXLM was legally represented, and it was his legal representative who, on 9 November 2021, provided a detailed response to the invitation to comment. While some comments were made about the factual basis of the new information in respect of the offences YXLM committed in immigration detention, it was accepted as an undisputable fact YXLM was convicted of an assault offence committed in immigration detention, to which he pleaded guilty.[95] It is difficult to accept YXLM’s solicitor failed to grasp the potential significance of such an undisputed fact when invited to make comments in respect of the character test. Nevertheless, the 9 November 2021 submissions do not squarely address the character test at all.
[95] G28, folio 358.
Even though the notice issued on 8 October 2021 does not set out the statutory basis on which it was issued, it was likely issued under s 57 of the Migration Act, which requires the Minister to provide relevant information to a visa applicant, as follows:
(1) In this section, relevant information means information (other than
non‑disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or
(ii) for deciding that the applicant is an excluded fast track review
applicant; and
(b) is specifically about the applicant or another person and is not just
about a class of persons of which the applicant or other person is
a member; and
(c) was not given by the applicant for the purpose of the application.
Note: Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the
way that the Minister considers appropriate in the circumstances;
and
(b) ensure, as far as is reasonably practicable, that the applicant
understands why it is relevant to consideration of the application;
and
(c) invite the applicant to comment on it.
If that is correct, noting the discussion of procedural requirements in Division 3, Part 2 of the Migration Act in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[96] it would follow the information contained in the notice is information the Minister considers would be part of the reason for refusing to grant YXLM a visa.
[96] [2018] HCA 174, per Gageler, Keane and Nettle JJ at [7]-[11].
Compliance with s 57(2) is not optional.[97] Under s 57(2)(b), the Minister is required to ensure, as far as is reasonably practicable, that the visa applicant understands why the relevant information which, would be part of the reason for refusing to grant a visa, is relevant to consideration of the application. The Minister did not, however, squarely and specifically set out in the notice the relevance of the new information to the character test ground in s 501(6)(aa)(i) specifically.
[97] Ibid at [11].
In consideration of the legislative scheme, including the objects set out in s 4 of the Migration Act and provisions for the detention of unlawful non-citizens in Division 7, Part 2 and in certain circumstances their removal from Australia (Division 8, Part 2), the importance of the requirement for the Minister to ensure a visa applicant understands and has opportunity to address the reasons his or her visa application may be refused under s 501(1) is in sharp contrast to the possible legal consequences an adverse decision may have for such an applicant.
The words as far as is reasonably practicable in s 57(2)(b) allow some latitude in the Minister’s obligation. Clearly enough, what may be reasonable and practical in any particular case, must turn on the particular facts. Conceivably, the phrase may be construed as a threshold permitting a broad or general explanation of relevance, without specificity or particular reasons. The clear purpose of the notice requirement, however, is to enable an applicant to know the case they must meet: to know why the Minister considers the relevant information would be the reason, or part of the reason, to refuse to grant the person a visa. Where the Minister’s notice invites an applicant to comment about relevant information without clearly or sufficiently explaining its relevance as a reason to refuse to grant the person a visa, questions might arise about the operation of s 63(3) and when the Minister is authorised to refuse to grant the applicant a visa after inviting the person to comment.
The issue arising presently is whether the Minister’s failure to specifically refer to the ground in s 501(6)(aa)(i) in the 8 October 2021 notice limited the power of the original decision-maker to consider that ground when determining if YXLM fails the character test. The parties assert this question should be answered in the affirmative, citing CPJ16 as binding authority. I do not agree.
The information given with the 8 October 2021 notice is in respect of YXLM and it undermines his case for the grant of a visa. The information is of direct relevance to the character test, particularly the ground set out in s 501(6)(aa)(i), which is binary in nature and which does not require the formulation of an opinion. The information unequivocally establishes the fact YXLM pleaded guilty to and was convicted of committing an assault offence while held in immigration detention, squarely meeting the threshold in s 501(6)(aa)(i). Ahead of any reasoning on the facts of the case, the content of the information, inherently, is of direct and obvious significance to the question whether YXLM fails the character test, and it would be part of the reason for refusing to grant YXLM a visa. The notice invited YXLM to comment on the new information, specifically he was invited to comment or provide information on whether you pass the character test and on whether the decision-maker should exercise his or her discretion to refuse your application for a visa,[98] which he did.
[98] G22, folio 199.
As matters proceeded, the delegate made factual findings about YXLM’s conviction for offences committed in immigration detention, but the delegate did not squarely decide if the ground set out in s 501(6)(aa)(i) was met. The delegate found YXLM failed the character test under the ground set out in s 501(6)(d)(i).
It was on the basis of the matters squarely addressed and decided by the delegate, the parties prepared their cases for hearing in this review.
The question for the Tribunal is whether the delegate had power to decide if the ground in s 501(6)(aa)(i) was made out and whether YXLM failed the character test for that reason. If the answer is ‘yes’, then under s 43(1) of the AAT Act, and consistent with settled authority,[99] the power may be exercised by the Tribunal on review – the Tribunal is required to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. [100] This is so whether or not the original decision-maker exercised power to decide the question.
[99] Makasa at [50], citing Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51].
[100] Shi v Migration Agents Registration Authority [2008] HCA 31, per Hayne and Heydon JJ at 100.
When addressing questions of the Tribunal’s power when reviewing a decision under s 501(1) in the Migration Act, the statutory background under which powers are conferred upon the Tribunal must be considered. [101] Under s 43(1) of the AAT Act and for the purposes of review, the Tribunal exercises all of the powers and discretions conferred upon delegate who made the decision under s 501(1), including in respect of the character test. Subject only to any relevant legislative constraint, while the Tribunal has jurisdiction and power to determine all matters that were capable of being decided by the delegate, whether or not the delegate exhaustively exercised the relevant powers and discretions conferred upon them, the Tribunal is not confined to issues the delegate decided.[102] It is for the Tribunal to determine the issues to be decided in the review within the terms of the applicable legislation and, once decided, then the Tribunal is required to proceed in a manner that is procedurally fair insofar as the applicable legislation allows.
[101] Madafferi v Minister for Immigration [2002] FCAFC 220 at [68]-[69].
[102] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35].
When the unequivocal nature of the information given with the 8 October 2021 notice and its direct relevance to application of the character test, and s 501(6)(aa)(i) in particular, is considered in reference to the corresponding submissions made on YXLM’s behalf by this then legal representative, it may be accepted there was no contest about YXLM failing the character test. That being so, while it is far from certain, I think the better conclusion is the Minister’s delegate had power to decide if YXLM failed the character test on the information contained in the 8 October 2021 notice under the ground set out in s 501(6)(aa)(i), as well as under s 501(6)(d)(i) (which require a decision-maker to formulate an opinion) pursuant to the notice issued on 26 October 2018.
It was in consideration of this prospect, at the outset of the hearing, the parties were given an opportunity to address both character test grounds, including the opportunity to apply for an adjournment of the hearing, albeit within the time constraints of the 84-day period specified in s 500(6L). Consequently, the Tribunal has jurisdiction and power to decide if YXLM fails the character test under the grounds set out in s 500(6)(aa)(i) and s 500(6)(d)(i).
As YXLM has failed the character test under the ground set out in s 501(6)(d)(i), it is not strictly necessary to make any finding in respect of any other character test ground. Nevertheless, on the uncontroverted evidence of YXLM’s record of committing offences for which he was convicted while in immigration detention in March 2019, it is clear he would also fail the character test on the ground set out in s 500(6)(aa)(i).
Even if I am wrong about this, as I have said, YXLM fails the character test under s 501(6)(d)(i). Consequently, the discretion in s 501(1) to refuse to grant him a visa is enlivened, and it is necessary to decide if the discretion should be exercised.
Discretion to refuse to grant a visa
Under subparagraph 56.1(2) of Direction 90, when the discretion in s 501(1) to refuse to grant a visa is enlivened, the decision-maker must consider the specific circumstances of the particular case.
Primary consideration and other considerations must be taken into account. The primary considerations are set out in paragraph 8, as follows:
(i) protection of the Australian community from criminal or other serious conduct;
(ii) whether the conduct engaged in constituted family violence;
(iii) the best interests of minor children in Australia; and
(iv) expectations of the Australian community.
The parties agree, correctly, the primary considerations relating to family violence and the best interests of minor children are not relevant in the circumstances of this case. There is no evidence YXLM has engaged in conduct involving or that would be considered to be family violence. YXLM has no children and there are no minor children whose interests should be considered.
The other considerations which must be taken into account are set out in paragraph 9. These include but are not limited to:
(i) international non-refoulement obligations;
(ii) extent of impediments if removed;
(iii) impact on victims; and
(iv) links to the Australian community, including:
a) strength, nature and duration of ties to Australia; and
b) impact on Australian business interests.
Paragraph 7 provides guidance on applying the considerations:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Protection of the Australian community from criminal or other serious conduct
Having regard to the matters set out in paragraph 8.1 of Direction 90, regard is to be had to the principle that remaining in Australia is a privilege that is conferred on non-citizens in the expectation they have and will be law-abiding and they will not cause or threaten harm to individuals or the Australian community. It is in this context the Government’s commitment to protect the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens is framed. There are 2 key considerations: the nature and seriousness of YXLM’s conduct to date; and the risk to the Australian community, should he commit further offences or engage in serious conduct.
YXLM’s past criminal conduct includes 4 assault offences in the period from November 2016 to March 2019 and previous relatively minor offences in the period from March 2014 to December 2016. YXLM has not committed any criminal offences since 28 March 2019.
He has expressed remorse for mistakes he made and for his past offending conduct.
In the Minister’s submission, the most serious offence is an assault occasioning actual bodily harm which was committed on 23 March 2019. YXLM pleaded guilty and was convicted of this offence on 10 July 2019. He was sentenced to an 18-month Community Correction Order. The assault occurred in the Villawood Immigration Detention Centre. The Statement of Facts before the Court are in S27. On those asserted facts, YXLM demanded money from another detainee to buy a point of ice for $50.[103] An altercation ensued in which YXLM punched and physically assaulted the other detainee and took his mobile telephone. A third detainee attempted to intervene. YXLM physically assaulted and punched this detainee and threw a recently boiled kettle of water at him, causing him to fall backwards and scream in pain.[104] The detainee required medical treatment for burns to the left side of his face, neck and shoulder.
[103] S27, folio 60.
[104] Ibid, folio 61.
As I have said, Magistrate Elks considered the offence to be in the mid-range.[105] I accept that is correct.
[105] G9, folio 50.
YXLM was convicted of another assault offence which he committed on 28 March 2019 at the Villawood Immigration Detention Centre. YXLM pleaded guilty and he was convicted of this offence. The Statement of Facts placed before the Court are in G8. On those asserted facts, YXLM was one of a group of detainees involved in an argument which became violent. In the course of the fracas, YXLM is said to have picked up a chair, held it above his head and moved towards other detainees in a threatening manner and, a short time later, to have held half a pair of scissors in his right hand, with the cutting end facing away from his body and moved towards a group of detainees, whereupon detention centre staff removed the scissors from him.[106]
[106] G8, folio 45.
No sentencing remarks have been provided to the Tribunal. I note the delegate stated:
It appears that [YXLM] was convicted without passing sentence and this conviction was removed from his criminal record after 12 months of good behaviour.[107]
[107] G5, folio 21.
On 3 February 2017, YXLM committed a common assault offence to which he pleaded guilty. He was convicted and sentenced to a 12-month good behaviour bond. On the Facts Sheet placed before the Court it appears YXLM pushed an empty shopping trolley out of the Woolworths store in the Stockland Mall and he was intercepted by the store manager (a woman). What then occurred is described in the following extract from the Facts Sheet:
The accused [YXLM] has then pushed the trolley he was holding into the victim/witness and has rammed her again. The victim/witness stood her ground when the accused has then raised his right hand up towards the victim/witness. It was at this point that the victim/witness noticed the accused was holding a large kitchen knife in his hand which the accused had taken from inside Woolworths. The accused has pointed the knife at the victim/witness and then hurled the knife to his right with the knife landing in the customer service counter. (This knife was later found to still be in its original packaging).[108]
[108] S14, folio 23.
In consideration of this and related offences, Magistrate Misalski ordered an assessment under s 33(1)(b) of the Mental Health Act.
On 27 November 2016, YXLM resisted arrest and kicked an officer,[109] for which he was charged with assaulting an officer in the course of duty. For this and related offences he received a 12-month good behaviour bond.[110]
[109] S12, folio 19.
[110] G6, folio 34.
Considering the thresholds set out in paragraph 8.1.1(1) of Direction 90, the assault offences YXLM committed are properly considered as violent crimes. It is noteworthy that one of these offences was against a woman – on 17 February 2017 YXLM pushed a shopping trolley into a female store manager.[111] Regard must be the policy set out in paragraph 8.1.1(1)(a)(i) and (ii), under which violent crimes and crimes of a violent nature against women are viewed by the Australian government as very serious. While there is no evidence the female store manager suffered harm, under subparagraph 8.1.1(1)(a)(ii) of Direction 90, YXLM’s common assault using a shopping trolley is considered as very serious even though, as the sentencing magistrate clearly decided when imposing a 9-month good behaviour bond, the offence was treated as relatively minor.
[111] S14, folio 23.
Two of the assault crimes YXLM committed, including YXLM’s most serious offending conduct, occurred in immigration detention. But for the violent content, these crimes would be considered as serious by the Australian government under paragraph 8.1.1(1)(b)(iv). The detention context in which these crimes were committed by YXLM, and what Magistrate Elks described as a jungle mentality that may occur in detention centres, are relevant factors to take into account when considering criteria relating to protect of the Australian community.
It is also noteworthy, YXLM committed a violent offence against a police officer in the course of his duty: YXLM kicked the officer while resisting arrest on 27 November 2016.[112] Under subparagraph 8.1.1(1)(b)(ii), this is an offence that is considered to be serious.
[112] S12, folio 19.
In consideration of the nature and seriousness of YXLM’s offending conduct and the circumstances in which it occurred, while his assault offences involve violence, as the sentences he received indicate, the extent of his criminal conduct is at the low to mid-range.
While YXLM has been convicted for several offences, the frequency of his offending conduct is not high. He committed 4 offences which are considered to be very serious or serious in the period from November 2016 to March 2019. The Minister asserts there is a pattern of escalating seriousness in YXLM’s offending conduct. While the offence YXLM committed on 23 March 2019 was indubitably more serious than the offence he committed on the store manager on 3 February 2017 and the offence he committed on the police officer on 27 November 2016, the offence he committed on 28 March 2019 was not so serious (and the related conviction was subsequently struck from his criminal record after 12 months of good behaviour). I am satisfied the increase in the seriousness of his offending is attributable to the particular circumstances of his detention and to the adverse effects of prolonged immigration detention on his mental health. I am not persuaded this amounts to a trend of increasing seriousness, rather it demonstrates YXLM’s vulnerability to respond inappropriately, to the extent of criminal violence, to the particular circumstances he encountered in immigration detention. While this exposes a pattern of reactive conduct, I am not persuaded the variable seriousness of the 4 violent offences YXLM committed, or any other conduct in which he engaged in immigration detention involving violence, is properly described as a trend of increasing seriousness. YXLM has been frank about his past offending conduct, and he pleaded guilty in every case. The cumulative effect of his repeated offending is low.

With regard to the risk to the Australian community should YXLM commit further offences or engage in other serious conduct, under subparagraph 8.1.2(1) of Direction 90, the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
In YXLM’s case, I am satisfied the risk of future harm should he engage in further criminal or serious conduct is low.
The weight of medical evidence supports the conclusion YXLM’s past offending conduct was related to his failure to comply with the recommended or prescribed treatment regimen for his mental health condition and his past use of alcohol and drugs, as well as the effects of immigration detention. The medical evidence also supports a finding that, so long as YXLM obtains and complies with recommended treatment for his mental health condition and he refrains from using alcohol or drugs, the risk of him reoffending should he be released into the community is low.
The risk of YXLM reoffending is attendant upon the risk he may not comply with treatment recommendations in the future as he has done in the past. And there is a risk he may once again resort to alcohol and drugs should he be granted a visa and released into the community. YXLM’s exhortations to the contrary and his assertion of a more positive attitude following heart surgery in May 2019 must be assessed in the context of his past conduct. In December 2017, YXLM informed Dr Ellis that “of course” he would take medications and comply with this,[113] but then failed to do so and committed further crimes in immigration detention. I accept the circumstances of his immigration detention, including his access to and use of illicit drugs in the Villawood Immigration Detention Centre, adversely affected his mental health and his judgement.
[113] G25.d, folio 215.
YXLM has refrained from offending conduct for more than 3 years and he has expressed genuine remorse. I accept he has complied with the treatment regimen for his mental health condition since offending in March 2019, although I note he is recorded to have used drugs on 30 January 2020. While this suggests an ongoing susceptibility to engage in drug use, there is no evidence YXLM has used drugs or alcohol since that date, particularly since his transfer to the Yongah Hill Detention Centre. I note YXLM sought transfer within the immigration detention system in order to remove himself from exposure to drugs.
Nevertheless, there is a risk YXLM might fail to comply with the medical treatment regimen for his mental health condition should he be released into the community. As Dr Ellis noted, particular arrangements may need to be made to minimise this risk.
Should the risk be realised, there is a risk YXLM might reoffend again in the manner of offences he has committed in the past and cause physical harm to members of the Australian community.
I am not persuaded the risk of harm is affected by the duration of the visa YXLM applied for. There is no evidence to support the proposition the longer YXLM is in Australia, the greater the risk he would commit further offences. I accept YXLM’s evidence that he wants to make a life for himself and he hopes to use his knowledge and experience in the sport he previously engaged in professionally to train and encourage young people in Australia.
On balance, considering the nature and seriousness of YXLM’s past offences and the risk to the Australian community should he reoffend or engage in other serious conduct, these considerations weigh in favour of exercising discretion to refuse to grant him a visa, but not heavily so. While the weight of these considerations tips the balance towards refusal, this is of only slight degree and it, alone, is not determinative.
Expectations of the Australian community
The expectation set out in subparagraph 8.4(1) of Direction 90 is that non-citizens obey Australian laws while in Australia. This general expectation is given a sharp point:
Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk 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.
The deeming effect of this part of Direction 90 in respect of the Government’s statement of Australian community expectations is, by its nature, adverse to any visa applicant who has engaged in serious conduct in breach of those expectations, giving rise to character concerns.[114] To the extent subparagraph 8.4(1) and (2) refer to the outcome of the discretion conferred under s 501(1) and this might be construed as dictating to a decision-maker the outcome required in any particular case, a construction of that kind should not be adopted as doing so would be inimical to the exercise of the discretion conferred upon the decision-maker.[115]
[114] FYBR v Minister for Home Affairs [2019] FCAFC 185, per Charlesworth J at [75] and Stewart at [89].
[115] Ibid, per Charlesworth J at [73] and Stewart J at [90]-[92].
YXLM has engaged in serious conduct, namely criminal conduct that gives rise to character concerns. He failed to pass the character test in consequence of those concerns. Having regard to the nature and seriousness of his offending conduct and the risk, albeit low, he would engage in further criminal conduct, should he relapse into non-compliance with mental health treatment recommendations or further use of alcohol or drugs, his conduct is in breach of the deemed expectation of the Australian community.
It is possible, as YXLM asserts, contrary to the expectation expressed by the Government, the Australian community would expect that a refugee without a substantial criminal record, who has serious mental health issues and who has not offended for over 3 years would be treated fairly and not held indefinitely in detention. I have no doubt there would be sections of the Australian community who would adhere to such expectations. But that is not to the point of the present consideration, which must necessarily focus on the terms of the Government’s expression of community expectations.
In consideration of YXLM’s past offending conduct, the harm caused to individuals in the Australian community was minimal. Greater harm was caused to 2 individuals in immigration detention who were non-citizens. Those circumstances are unlikely to be replicated should YXLM be released from immigration detention into the Australian community. Nevertheless, if he did reoffend following release, individuals may be physically harmed.
In my assessment of the evidence, the risk of YXLM reoffending if he is released from immigration detention is low. As I have said, this risk is contingent on him complying with the medical treatment regimen for his mental health condition and continuing to abstain from use of alcohol and illicit drugs. Dr Ellis set out some of the medical and support services and treatments that may be available to YXLM in Parramatta should he be released and reside there with his friends. I accept YXLM has re-oriented his life and his attitudes following heart surgery in May 2019. His efforts at self-rehabilitation, which I accept are genuine, and his compliance with medical treatment, and his abstinence from using alcohol or illicit drugs, support this change. While he has not spent time in the community after his heart surgery or since his most recent offence, and his response to being released and dealing with the challenges of life outside the strictures of immigration detention cannot be predicted with certainty, the risk of him reoffending is low, and it is not an unacceptable risk in the particular circumstances.
I am satisfied that YXLM’s serious conduct in the past and related character concerns and the low level of risk he may engage in further serious conduct is not consistent with the deemed expectation non-citizens in Australia will be law-abiding. The nature of YXLM’s conduct is not of a kind described in subparagraph 8.4(2) of Direction 90. There are mitigating circumstances which, but for the deemed expectation, might be worthy of latitude and may reasonably give rise to an expectation the traumatic and difficult circumstances of his case would be taken into account. Nevertheless, the expectation of the Australian government compels a conclusion that YXLM’s past offending conduct and related character concerns weigh in favour of refusing to grant him a visa. In my assessment of the circumstances in this case, while this consideration weighs in favour of exercising the discretion to refuse YXLM a visa, it does not weigh heavily in the balance and only lightly tips the scale.
International non-refoulement obligations
There is no controversy between the parties that YXLM has been found to be owed protection on the basis he is a refugee, and he meets the criteria in s 36(2)(a) of the Migration Act in respect of Iran and s 36(1C) in respect of serious harm. No relevant assessment or determination on this point has been given to the Tribunal. Nevertheless, so much is contained in the decision of the Minister’s delegate,[116] and I will proceed on the basis it is correct.
[116] G5, folios 29-30.
It follows, under s 197C and s 198, there is no authority to remove YXLM to Iran.
There is a possibility YXLM could be removed to a third country. There is no evidence of any prospect that this is likely to occur or that any related process has commenced or is likely to commence. The Minister submits, presently, no such decision has been made.
It is also possible the Minister may, at some time in the future, decide to exercise her non-compellable powers under s 195A to grant YXLM a visa or under s 197AB in respect of residence. Presently, no such decision has been made pending resolution of this application in the Tribunal and there is nothing before the Tribunal to suggest the Minister may decide to exercise those powers at all.
The real prospect resulting from these considerations is, if YXLM is refused a visa, he will continue to be held in immigration detention. As the majority made clear in Commonwealth of Australia v ALJ20:[117]
The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the [Migration] Act is to detain the unlawful non‑citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co‑extensive with, the intents or purposes of officers of the Executive towards the detainee.[118]
[117] [2021] HCA 21.
[118] Ibid, per Kiefel CJ, Gageler, Keane and Steward JJ at [51].
In effect, therefore, should YXLM be refused grant of a visa, the legal consequence of such a decision is he will be held in immigration detention until one of the events in s 196 occurs. The duration of his detention pending such and occurrence may be uncertain and without a predetermined end as there is no temporal limit outside the terms of s 196. As YXLM asserts, this amounts to indefinite detention, namely detention without a fixed end known to the detainee. Even where a person cannot be removed in compliance with non-refoulement obligations, indefinite detention is not inevitable as, under s 196(1)(d), the period of detention may be brought to an end by grant of a visa. Nevertheless, uncertainty about that prospect, or being removed to a third country, and the possibility of it occurring at some time in the future, if at all, is a significant and defining feature of the indefinite nature of detention for non-citizens who cannot be removed.
In YXLM’s case, there is unequivocal evidence detention has a serious adverse effect on his mental health condition. His repeated acts of self-harm are evidence of this. It can be accepted much of his criminal record of offending is directly linked to his experience in and the effect of prolonged detention. I note the Minister’s delegate came to a similar conclusion.[119]
[119] G5, folio 31.
Furthermore, the indefinite nature of YXLM’s detention and the prospect of it continuing with any identified or identifiable end point is a powerful factor in the hopelessness YXLM expressed when explaining acts of self-harm and attempted suicide in the past.
To my mind, these considerations weigh heavily in favour of not exercising the discretion to refuse YXLM a visa.
Extent of impediments if removed
As YXLM is not within the exceptions set out in s 197C(3)(c), he will not be removed from Australia under s 198. Consequently, in respect of paragraph 9.2 of Direction 90, there is no utility in considering the extent of any impediments YXLM may face if removed to Iran.
Nevertheless, were that to occur, it can be accepted he would be likely to face medical, psychological, religious, cultural and economic impediments, as well as serious harm. Such considerations would weigh heavily against exercising the discretion to refuse to grant him a visa.
In the present circumstances, however, as removal is not presently an option, these considerations do not weigh one way or the other.
Impact on victims
There is no evidence before the Tribunal addressing the impact of YXLM’s past criminal conduct on victims. This consideration was not raised or addressed by either party.
I note the victim of YXLM’s most serious offence in immigration detention was also an immigration detainee who was not a member of the Australian community.
This consideration is of neutral weight.
Links to the Australian community
There are 2 considerations to address under paragraph 9.4.1, in respect of the strength, nature and duration of ties to Australia, and under paragraph 9.4.2, in respect of impact on Australian business interests.
YXLM produced no evidence of family, employment or business links to Australia.
Since arriving in November 2012, YXLM has spent 2 periods in the Australian community: from 17 January 2013 to 1 May 2015 and from 7 September 2016 to 13 February 2017. He gave evidence of having Iranian friends who are Australian citizens in Parramatta, with whom he could stay should he be released into the community.
By his own account, he has attended a Christian church, but he has produced no supporting evidence or statements from other members of that church.
In these circumstances, there is very little on which to base consideration of his links to the Australian community.
This consideration barely weighs in favour of not exercising the discretion to refuse YXLM a visa.
Conclusion
Having carefully considered the primary and other relevant considerations set out in Direction 90 and being mindful of the Objectives and Principles set out therein, this matter is finely balanced.
The primary considerations weigh marginally for exercising the discretion to refuse to grant YXLM a visa and, generally, these considerations should be given greater weight than other relevant considerations.
As will appear, I am satisfied these considerations are outweighed by other relevant considerations in the particular circumstances of YXLM’s case.
The consideration relating to non-refoulement and the adverse effect of continuing detention is likely to have on YXLM’s mental health condition weighs heavily against exercising the discretion to refuse to grant YXLM a visa. YXLM’s mental health condition is and, in all likelihood, will continue to be adversely affected by continuing immigration detention without knowledge of when it will come to an end, if ever. As YXLM cannot be removed to Iran and the prospect of him being removed to a third country is remote, he will remain in immigration detention by operation of law unless the Minister exercises power to grant him a visa. The Minister cannot be compelled to do so, and, on the present materials, this is not in prospect. In these circumstances, indefinite detention will be the legal consequence of a decision to exercise discretion to refuse to grant him a visa and this is likely to serious adverse effect on his mental health condition.
The need to protect the Australian community from harm and the deemed expectations of the Australian community must be weighed against the legal consequences of non-refoulement considerations and, in particular, the deleterious effect of continuing indefinite detention on YXLM’s his mental health condition.
The lawfulness of continuing to hold an unlawful non-citizen in immigration detention has been upheld in authoritative judgments over 2 decades. Related issues have been dealt with consistently in recent judgments.[120] The coming into effect of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 on 25 May 2021 and the reversal Wigney J described in BHL19 v Commonwealth of Australia (No.2)[121] in respect of the relevance of non-refoulement obligations in s 197C has not changed the lawfulness of continuing to hold an unlawful non-citizen in immigration detention where removal is not an option (although this issue has not yet been squarely dealt with in any case before the High Court). For YXLM that is the legal consequence of the protection finding made in his case.
[120] See e.g., Commonwealth of Australia v ALJ20 [2021] HCA 21 and BHL19 v Commonwealth of Australia (No.2) [2022] FCA 313.
[121] [2022] FCA 313 at [27].
Weighing these matters, and considering Direction 90 as a whole, giving greater weight to the nature and seriousness (including the deemed seriousness) of YXLM’s conduct and the risk of harm to the Australian community should he engage in further serious conduct, as well as the expectations of the Australian community as deemed by the government, I am satisfied the balance is tipped against exercising the discretion to refuse to grant YXLM a visa.
I am not persuaded by the Minister’s submissions or by the materials in evidence before the Tribunal that the primary considerations which weigh in favour of exercising the discretion to refuse YXLM a visa outweigh other relevant considerations in this case. In my assessment, they do not. Even though YXLM is an unlawful non-citizen under s 14 of the Migration Act, the adverse effect on his mental health condition of the legal consequences of the protection finding which has been made, and the bar on removing him under s 197C and s 198, is a powerful and very weighty consideration in the particular circumstances. Weighing up all of the primary and other considerations, I am satisfied the balance tips against exercising the discretion.
That being so, I am satisfied it is appropriate not to exercise the discretion in s 501(1) to refuse to grant YXLM the Temporary Protection (Class XD) (subclass 785) visa for which he applied.
This means the decision of the Minister’s delegate on 22 June 2022 must be set aside. It is not for the Tribunal to consider further matters of relevance to the grant of a visa to YXLM under s 65,[122] and for this reason the matter will be remitted to the Minister.
[122] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055 at [80].
Decision
The 22 June 2022 decision of the Minister’s delegate to refuse to grant YXLM a Temporary Protection (Class XD) visa is set aside. The matter is remitted to the Minister for further consideration of YXLM’s visa application with the direction the visa is not refused under s 501(1) of the Migration Act.
………………………….[sgd]………………………..
Associate
Dated:   13 September 2022
Date of Hearing:   5 and 6 September 2022
Date final submissions received:      31 August 2022
Counsel for Applicant:   Ms Fiona Lester, Francis Burt Chambers
Solicitor for Respondent:                   Mr Taylor Young, MinterEllison

Court	Conviction date	Offence	Penalty
Fairfield Local Court	18 June 2014	Shoplifting value >=$2,000 – T2	Fine $500
Burwood Local Court	12 March 2015	Destroy or damage property	Fine $1,000
Fairfield Local Court	20 April 2015	Remain on inclosed land not prescribed premises without lawful excuse	Fine $200
Fairfield Local Court	29 April 2015	Remain on inclosed land not prescribed premises without lawful excuse	Fine $350
Fairfield Local Court	21 December 2016	Resist officer in execution of duty – T2	Section 9 bond for 12 months
Fairfield Local Court	21 December 2016	Destroy or damage property	Section 9 bond for 12 months
Fairfield Local Court	21 December 2016	Assault officer in execution of duty – T2	Section 9 bond for 12 months
Blacktown Local Court	16 February 2017	Destroy or damage property	Fine $700
Fairfield Local Court	8 May 2018	Common assault – T2	Section 9 bond for 12 months
Bankstown Local Court	10 July 2019	Assault occasioning actual bodily harm – T2	18 months Community Corrections Order