YYKF and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 924

YYKF and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 924 (14 April 2020)

Division:GENERAL DIVISION
File Number: 2017/5069
Re:YYKF
APPLICANT

AndMinister of Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date of decision: 14 April 2020
Place:Melbourne

The Tribunal decides to:

1.set aside the decision made by a delegate of the respondent dated 3 August 2017 and refusing to grant the applicant a Temporary Protection (Class XD) visa under s 501(1) of the Migration Act 1958; and
2.substitute a decision that the applicant not be refused a grant of a Temporary Protection (Class XD) visa under s 501(1) of the Migration Act 1958.

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

Deputy President S A Forgie

Catchwords

MIGRATION – Application for temporary protection visa (class XD) – visa refused under s 501(1) of the Migration Act 1958 – whether applicant passes character test – whether applicant is a risk to the community – where applicant is owed non-refoulment obligations – decision under review set aside and substituted.

Legislation
Acts Interpretation Act 1901 (AI Act); s 33(3)

Migration Act 1958; s 5(1) s 35A; s 36; s 46A; s 65; s 189; s 501

Migration Regulations 1994; cl 866.331(2)

Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
BAL19 and Minister for Home Affairs [2019] FCA 2189
BHKM and Minister for Immigration and Border Protection [2018] AATA 3
BDQ19 v Minister for Home Affairs [2019] FCA 1630
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139
FYBR v Minister for Home Affairs [2019] FCAFC 185
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321
Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136; 24 AAR 457
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53; (2004) 220 CLR 338; 211 ALR 18
Re GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 178
Re KQHR and Minister for Immigration and Border Protection [2018] AATA 684
Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40
Re PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re YYKF and Minister for Immigration and Border Protection [2017] AATA 2029
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary materials
Chambers 21st Century Dictionary (1999), reprinted 2004)
Direction No. 79
Hansard, House of Representatives; 25 September 2014 at 10547-10548

REASONS FOR DECISION

Deputy President S A Forgie

YYKF is of Hazara ethnicity and a Shiite. He is a citizen of Pakistan who travelled by boat and arrived in Australia as an unauthorised maritime arrival on 8 June 2012. On 6 November 2012, he applied for a Protection (Class XA) visa attended a Protection visa interview on 19 March 2013. A delegate of the Minister for Immigration and Citizenship, as the position was then known, (Minister) was satisfied that YYKF was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (Refugees Convention) as prescribed by s 36(1A)(a) of the Migration Act 1958 (Migration Act) and cl 866.331(2) of Schedule 2 to the Migration Regulations 1994 (Migration Regulations). Subject to YYKF’s meeting other criteria specified for a Protection visa, the delegate recommended that he be granted a Protection visa.

On or about 5 February 2014, a delegate of the Minister refused YYKF a Protection visa on the basis that cl 866.22 of Schedule 2 to the Migration Regulations prevented unauthorised maritime arrivals from being granted a Protection visa. YYKF applied to the Refugee Review Tribunal (RRT) for review of the decision. Before it could be reviewed, the Senate disallowed Item 1 of Schedule 1 to the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (MAUMA Regulation) on 27 March 2014. As that Item had introduced cl 866.22, YYKF could no longer be refused a Protection visa on the basis that he was an unauthorised maritime arrival. Therefore, the RRT set aside the decision to do so and remitted YYKF’s application to the Minister for consideration whether he met the other criteria for a Protection visa. It did so on 21 July 2014.

Almost a year before the RRT’s decision, on 20 August 2013, YYKF had been convicted of driving with a blood alcohol level above the legal limit. He was fined $300 and his licence was suspended for six months. Two months before the RRT’s decision, on 29 May 2014, YYKF was convicted of reckless wounding after he stabbed his housemate with scissors during a fight. While in immigration detention, YYKF had six incidents relating to his behaviour between 10 September 2014 and 16 April 2016.

During this period, the Migration Act had been amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014[1] (MAPLA Act) permitting the Migration Regulations to provide that a valid application for a visa is taken not to be, and never to have been, a valid application for that visa but is taken to be a valid application for a visa of a different class.[2] Regulation 2.08F was inserted with effect from the same date - 16 December 2014 – so that a valid application for a Protection (Class XA) visa was taken to be, and always to have been, a valid application for a Protection (Class XD) visa.[3] While a Protection Class XA visa was a permanent visa, a Protection (Class XD) visa was a temporary visa when the MAPLA Act was passed.[4] Both are protection visas within the meaning of s 35A of the Migration Act. A delegate of the Minister took YYKF’s application for a Protection (Class XA) visa to be an application for a Protection (Class XD) visa. After advising YYKF on 4 April 2017 that the Minister was giving consideration to refusing his application, a delegate of the Minister decided on 3 August 2017 to refuse it under s 501(1).
[1] Act No. 2014/135
[2] Migration Act; s 45AA(3) inserted by MAPL Act; s 3; Schedule 2, Item 20
[3] MAPLA Act; s 3; Schedule 2, Item 38
[4] MAPLA Act; s 3; Schedule 2, Item 5

YYKF lodged an application in this Tribunal for review of the Minister’s decision. The Tribunal affirmed the Minister’s decision on 27 October 2017.[5] On appeal to the Federal Court, Colvin J quashed the decision on the basis that the Tribunal had not considered YYKF’s claim as to the risk that he faced if returned to Pakistan. Since it was remitted on 5 July 2018, Rares J has delivered his judgment in BAL19 and Minister for Home Affairs[6] (BAL19). In response to my invitation to make further submissions regarding the issues raised by BAL19, the YYKF has submitted that I should proceed to make a decision and not wait for the resolution of the issues raised in BAL19 by the appellate courts.[7] The Minister has taken the position that I should wait.
[5] Re YYKF and Minister for Immigration and Border Protection [2017] AATA 2029; Senior Member Fice
[6] [2019] FCA 2189
[7] An appeal from the judgment in BAL19 was lodged on 14 January 2020.

I have decided to set aside the decision made by a delegate of the Minister refusing to grant YYKF a Temporary Protection (Class XD) visa under s 501(1) and to substitute a decision that YYKF not be refused a grant of that visa under s 501(1).
LEGISLATIVE BACKGROUND
The object of the Migration Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[8] To advance its object, the legislation provides for visas permitting non-citizens to enter or remain in Australia, imposition of requirements that non-citizens provide personal identifiers and for the taking of unauthorised maritime arrivals to a regional processing country.[9] A non-citizen who holds a visa is a lawful non-citizen.[10] A non-citizen, who is in the migration zone and who is not a lawful non-citizen, is an unlawful non-citizen.[11] In order to advance its object, the Migration Act also provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by it.[12]
[8] Migration Act; s 4(1)
[9] Migration Act; ss 4(2), (3) and (5)
[10] Migration Act; s 13(1)
[11] Migration Act; s 14(1)
[12] Migration Act; s 4(4)
Visas
Subject to the terms of the Migration Act, the Minister may grant a non-citizen[13] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[14] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[15] There are prescribed classes of visa[16] as well as those set out in s 31(2). Among those set out in s 31(2) are permanent protection visas and temporary protection visas provided for by ss 35A(2) and (3) respectively.[17] Regulations may specify the criteria that must be met for a visa of a specified class.[18] To avoid doubt, s 31(3A) provides that criteria do not have to be prescribed for a number of visas including permanent protection visas and temporary protection visas. If they have been prescribed, though, they become criteria for the class of protection visa for which they have been prescribed. This follows from s 35A(6), which provides:
“The criteria for a class of protection visas are:
(a)the criteria set out in section 36; and
(b)any other relevant criteria prescribed by regulation for the purposes of section 31.
Note:See also Subdivision AL.”[19]
[13] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[14] Migration Act; ss 5 and 29(1)
[15] Migration Act; s 30
[16] Migration Act; s 31(1)
[17] Migration Act; ss 31(2)(e) and (f)
[18] Migration Act; s 31(3)
[19] Subdivision AL of Division 3 of Part 2 of the Migration Act is concerned with matters related to the verification of information an applicant gives to the Minister.

Application for Protection (Class XA) visa taken to be application for Protection (Class XD) visa

The power to make regulations is given to the Governor-General under s 504 of the Migration Act. Regulations come within the generic description of “delegated legislation” and are no less part of the legislative fabric of the Commonwealth. There is nothing in s 504 or in the Migration Act that sets aside the general rule of construction that the power includes the power to repeal, rescind, revoke, amend or vary those regulations.[20] It is generally expected, therefore, that the Governor-General will exercise the power to amend the Migration Regulations.
[20] Acts Interpretation Act 1901 (AI Act); s 33(3)

In the case of the MAPLA Act, however, Parliament itself has exercised the power. Although unusual, Parliament has not acted without power for it is the repository of the legislative power conferred under particular heads specified in the Commonwealth Constitution. Within those heads of power, it may delegate its legislative power to others such as the Governor-General or a minister who is accountable to Parliament.[21] As Barwick CJ has said “No doubt whilst the Parliament may delegate the legislative power it may not abdicate it. …”[22] Section 3(2) of the MAPLA Act recognises that Parliament has exercised its legislative power and expressly preserves the Governor-General’s power to deal with the regulations it has made, amended or varied in the future. It has done so by providing:
“The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.”
[21] See Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53; (2004) 220 CLR 338; 211 ALR 18 at [77]; 420; 38 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ
[22] Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 at 373

Classification of Class and Subclass of visa

For the purposes of s 31 of the Migration Act, r 2.01(1) of the Migration Regulations provides that the classes are, unless specified in r 2.01(2), those set out in the respective items in Schedule 1 and transitional (permanent) and transitional (temporary). The table set out in r 2.02(2) specifies each class of visa provided for in the Act and the relevant section of the Act as well as the classification by class and by subclass the Migration Regulations. Item 3 of the table states that the classification of the temporary protection visa provided for under s 35A(3) of the Migration Act is a Temporary Protection (Class XD) visa and its subclass is Subclass 785 (Temporary Protection).

Making a valid visa application

Section 46(1) of the Migration Act provides that, subject to ss 46(1A), (2) and (2A), an application for a visa is valid if, and only if, it meets the six criteria it sets out. Among those criteria are that the application is for a visa of a class specified in the application,[23] any fees and charges have been paid[24] and is not invalid under any other provision of the legislation including s 46A relating to visa applications by unauthorised maritime arrivals.[25] There is nothing to suggest that YYKF has not met the requirements of s 46.
[23] Migration Act; s 46(1)(a)
[24] Migration Act; ss 46(1)(ba) and (c)
[25] Migration Act; s 46(1)(e)(ii)

Among the classes of visa covered by s 46AA are temporary protection visa provided for in s 35A(3).[26] The effect of s 46AA(2) is that an application for such a visa is invalid if, when it is made, there are no regulations prescribing criteria that must be satisfied for a visa of that particular class to be a valid application and there are no regulations in effect prescribing criteria that must be satisfied for it to be granted. Those criteria do not include prescribed criteria that apply generally to visa applications or the granting of visas.[27] If regulations do prescribe criteria other than those that apply generally, s 46AA(4) provides:
[26] Migration Act; s 46AA(1)(c)
[27] Migration Act; s 46AA(3)
“If regulations are in effect prescribing criteria mentioned in paragraph (2)(a) or (b) (or both) for a visa of a class covered by this section:
(a)an application for a visa is invalid unless the application satisfies both:
(i)any applicable criteria under this Act that relate to applications for visas of that class; and
(ii)any applicable criteria prescribed by regulation that relate to applications for visa of that class; and
(b)the visa must not be granted unless the application satisfies both:
(i)any applicable criteria under this Act that relate to the grant of visas of that class; and
(ii)any applicable criteria prescribed by regulation that relate to the grant of visas of that class.
Note:For visa applications generally, see section 46. For the grant of a visa generally, see section 65.”

In the case of YYKF, his valid application for a Protection (Class XA) visa is taken to be a valid application for a Protection (Class XD) visa.[28]
[28] Migration Regulations; r 2.08F

Consideration of valid visa application

Section 47 is relevant:
“(1) The Minister is to consider a valid application.
(2)The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
The criteria that an applicant for a protection visa must satisfy
The criteria for a class of protection visas, s 35A(6) states, are those set out in s 36 and any other relevant criteria prescribed by regulation for the purposes of s 31. Those set out in s 36(1A) are that:
“An applicant for a protection visa must satisfy:
(a)both of the criteria in subsections (1B) and (1C); and
(b)at least one of the criteria in subsection (2).”

Those referred to in ss 36(1B), (1C) and (2) are:
“(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note:For paragraph (b), see section 5M.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.”
Section 36(1C)(b) does not define what is meant by a “particularly serious crime” but it is defined in s 5M:
“For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.”

A “serious Australian offence” means:
“… an offence against a law in force in Australia, where:
(a)       the offence:
(i)        involves violence against a person; or
(ii)       is a serious drug offence; or
(iii)      involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and

(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.”[29]

[29] Migration Act; s 5(1) A “serious foreign offence” is defined in similar terms in s 5(1).

Section 36(2B) goes on to elaborate upon the criteria in s 36(2)(aa) regarding when the Minister will not be satisfied that a non-citizen will suffer significant harm. Section 36(2C) provides that a non-citizen will be taken not to satisfy the criterion in s 36(2)(aa) if:
“(a) the Minister has serious reasons for considering that:
(i)the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non-citizen committed a serious non-political crime before re-entering Australia; or
(iii)the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b)the Minister considers, on reasonable grounds, that:
(i)the non-citizen is a danger to Australia’s security; or
(ii)the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence) is a danger to the Australian community.”

Sections 36(3) provides that Australia is taken not to have protection obligations in respect of a non-citizen, who has not taken all possible steps to avail himself or herself of a right to enter and reside in a country other than Australia. Sections 36(4) to (5A) qualify that provision.

Regard must also be had to Subdivision AL of Division 3 of Part 2 of the Migration Act. It relates to the verification of information given by an applicant for a protection visa. In summary, s 91WA provides that, unless satisfied that there is a reasonable explanation and an applicant has provided, or taken reasonable steps to provide it, the Minister must refuse to grant a protection visa to an applicant if he or she has provided a bogus document as evidence of his or her identity, nationality or citizenship or has destroyed or disposed of it or caused it to be destroyed or disposed of.

Section 31(3) of the Migration Act provides that the regulations may prescribed criteria for a visa of a specified class which may include a class provided by s 35A. Regulation 2.03 of the Migration Regulations provides that, for the purposes of s 31(3) and subject to rr 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a particular class are the primary criteria set out in the relevant Part of Schedule 2 or, if a relevant Part sets out secondary criteria, those secondary criteria.

I have referred to the one Subclass that has been prescribed for a Protection (Class XD) visa: Subclass 785. The Migration Regulations prescribe criteria to be satisfied at the time of the application for the visa and those at the time of the decision. Clause 785.21 sets out the criteria that must be satisfied at the time of the application. In the case of an individual, they are that the applicant claims that a criterion mentioned in ss 36(2)(a) or (aa) of the Migration Act is satisfied in respect of him or her and makes specific claims why that is so.[30] Clause 785.221 sets out the criteria to be satisfied at the time of decision. They include criteria that the Minister is satisfied that ss 36(2)(a) or (aa) is met in relation to an applicant,[31] the applicant has undergone medical examinations and satisfied cll 785.222 to 785.225 and that he or she has satisfied, among others, public interest criteria 4001 and 4003A(PIC 4001 and 4003A).[32] If the applicant has turned 18 at the time of the application, he or she must also satisfy PIC 4019.[33] Conditions are prescribed by cl 785.611. They are conditions 8503,[34] 8570[35] and 8565.[36] Clause 785.227 requires the Minister to be satisfied that the grant of the visa is in the national interest.
[30] Migration Regulations; Schedule 2, cl 785.211(1)
[31] Migration Regulations; Schedule 2, cl 785.221(2)
[32] Migration Regulations; Schedule 2, cl 785.226(a)
[33] Migration Regulations; Schedule 2, cll 785.226
[34] “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.”
[35] The holder of a Subclass 785 visa must not enter a country in respect of which he or she, or a family member, was found to be a person in respect of whom Australia has protection obligations unless the Minister is satisfied there are compassionate or compelling reasons for doing so and has approved the entry in writing.
[36] “The holder must notify Immigration of any change in the holder’s residential address within 28 days after the change occurs.”

The public interest criteria are set out in Part 1 Schedule 4 to the Migration Regulations.[37] PIC 4001 states:
“Either:
(a)the person satisfies the Minister that the person passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.”
[37] Definition of “public interest criterion”: Migration Regulations; r 1.03
The expression “character test” is not defined in r 1.03 of the Migration Regulations and nor is it defined in s 5 of the Migration Act. It is, however, given a definition on s 501(6) of the Migration Act for the purposes of s 501. Section 501(1) provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:Character test is defined by subsection (6).’

The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[38] In so far as it relates to this case, s 501(6) provides:
[38] Migration Act; s 501(3)
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or

(b)       the person has been convicted of an offence that was committed:
(i)        while the person was in immigration detention; or
(ii)       …
(iii)       …

(c)       having regard to either or both the following:
(i)        the person’s past and present criminal conduct;
(ii)       the person’s past and present general conduct;
the person is not of good character; or
(d)in the event 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; or
(ii)-(v) …

Otherwise, the person passes the character test.”

Again, in so far as it is relevant, s 501(7) states:
“For the purposes of the character test, a person has a substantial criminal record if:
(a)-(b) …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)-(f) …”
Even if the Minister is not satisfied that the person passes the character test, the power to refuse the visa under s 501(1) is a discretionary decision. I refer to this in the following paragraph and below.

Decision to grant or refuse to grant visa

In so far as it is relevant to the circumstances of this case, s 65(1) provides:
“Subject to sections 84 and 86, after considering a valid application for a visa, the Minister is satisfied that:
(a) if satisfied that:
(i) the health criteria (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 9!WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b)if not so satisfied, is to refuse the grant of the visa.
Note 1:Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in the determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has a specified maximum number.
Note 2:…
Note 3: …”
Removal of unlawful non-citizens
Section 189(1) provides that if an officer knows, or reasonably suspects, that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. YYKF is in the migration zone on mainland Australian and in detention as an unlawful non-citizen. Section 198(6) applies in YYKF’s circumstances and provides:
“An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii)the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

If a person is in detention under s 189, the Minister may grant the person a visa if he or she thinks that it is in the public interest to do so. The Minister may exercise that power regardless of whether the person has applied for the visa.[39] He or she is not under any obligation to exercise the power but, if the Minister does exercise it, he or she must do so personally.[40]
[39] Migration Act; ss 195A(1) and (2)
[40] Migration Act; ss 195A(4) and (5)

In exercising the power, the Minister is not bound by Subdivision AA, AC or AF of Division 3 of Part 2. Of particular note in that regard is s 46A, which is found within Subdivision AA of Division 3 of Part 2. Section 46A(1) provides that an application for a visa is not a valid application if it is made by an unauthorized maritime arrival who is in Australia and who is either an unlawful non-citizen or who holds a temporary protection visa or a temporary visa of a kind, however described, prescribed for the purposes of the s 46A(1)(b)(ii). A Subclass 785 visa is one of the kinds of visas prescribed for the purposes of s 46A(1)(b)(ii) by r 2.11A(c) of the Migration Regulations.

Section 197C provides:
“Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.”
Minister’s directions regarding exercise of power under section 501(1)

Section 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[41] Those directions must not be inconsistent with the Act or the Regulations made under it.[42] The person or body to whom the directions are given must comply with them.[43] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 79”. In so far as a decision under s 501(1) is concerned, Direction No. 79 gives direction both in relation to whether or not a person passes the character test under s 501 and, if the person does not, whether that person should be refused a visa. It was made on 20 December 2018 and commenced on 28 February 2019.
[41] Migration Act; s 499(1)
[42] Migration Act; s 499(2)
[43] Migration Act; s 499(2A)

Tribunal’s review powers regarding decision made under s 501 of the Migration Act

The decision made by the delegate of the Minister was made under s 501(1) of the Migration Act. Applications may be made to the Tribunal by virtue of s 500(1)(b). The decision does not come within the exclusions from review set out in s 501(4A).

BAL19 v MINISTER FOR HOME AFFAIRS

Since this matter was heard, Rares J handed down his judgment in BAL19.[44] His Honour considered three discrete issues. The first was whether the Minister had committed a material jurisdictional error by not approaching the exercise of the discretion under s 501(1) on the basis that a refusal would have the legal or practical consequence of refoulement as a direct and immediate consequence of ss 197C and 198. That would be so in spite of Australia’s non-refoulement obligations owed to YYFK. Rares J concluded that the Minister’s reasons demonstrated that he had not approached the discretion on the correct basis.
[44] [2019} FCA 2189

The second issue considered by Rares J related to whether s 501 was a general provision that was displaced by, or inconsistent with, the criterion for a protection visa in s 36(1C). He noted that the Migration Act had been amended by the MAPLA Act (which he refers to as the 2014 Amendments) to include ss 36(1C) and s 197C as part of a suite of measures to defined Australia’s non-refoulement obligations and their limits. A person who satisfied the criterion in s 36(1C), together with other criteria specified in s 36 was entitled, as of right, to be granted a protection visa unless the circumstances gave rise to the discretionary power in s 501 and it were exercised by virtue of s 65(1)(a)(iii). He concluded that:
“… since the 2014 Amendments, s 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled (or may be refused) under s 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to grant a protection visa: Anthony Hordern 47 CLR at 7; Nystrom 228 CLR at 571-572 [2].”[45]
[45] [2019] FCA 2189 at [88] citing Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566

The third issue related to the prescription by cl 785.226(a) of PIC 4001 as a criterion for a protection visa. His Honour considered that cl 785.226(a) was invalid in its prescription. He explained:
“ I reject the Minister’s argument that cl 785.226 validly specified PIC 4001 as a criterion for a protection visa. I am of opinion that PIC 4001 is broader than s 36(1C) and, therefore, like PIC 4002 in Plaintiff M47 [2012] HCA 46; 251 CLR 1, is inconsistent with s 36(1C). In Harrington v Lowe (1996) 190 CLR 311 at 324-325, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said that a regulation-making power ‘does not authorise the making of regulations which (i) vary or depart from, and thus are inconsistent with [see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 260] the positive provisions of the Act’. The Act now has a criterion for the grant of a protection visa in s 36(1C)(b) that specifies the circumstances and nature of, first, the convictions and, secondly, the danger to the Australian community that will disqualify a person from eligibility for the grant of a protection visa. The inclusion in cl 785.226(a) of PIC 4001 effects a substantive variation or departure from each of s 36(1C) and s 501, itself. The prescription of the criteria in PIC 4001, as mandatory for every applicant for a protection visa, is inconsistent with the nature of the discretions to refuse to grant or a cancel a visa that s 501 conferred directly on the Minister.”[46]
[46] [2019} FCA 2189 at [86]

In this case, the third issue is not relevant for I am not asked to review a decision to refuse to grant YYKF a protection visa on the basis that he does not meet the criteria for a protection visa set out in Part 2 of the Migration Act. The decision that I must review is that made under s 501(1) of the Migration Act. That raises both the first and the second issues considered by Rares J in BAL19. The first issue only becomes relevant if s 501 has not been displaced by the provisions of s 36.

If I apply the conclusion reached by Rares J that s 501 has been displaced by s 36, it would follow that I have no power to exercise under s 501. Arguably, YYKF could seek a writ of mandamus in the Federal Court directed to the Minister and requiring him to grant him a Protection (Class XD) visa. Whether the court would make that order before considering the appeal from the judgment in BAL19 is a matter of conjecture. If it did not do so and later decided to allow the appeal finding that s 501(1) has not been displaced by, and is not inconsistent with, s 36, YYKF would continue to be in immigration detention without the delegate’s decision under s 501 having been reviewed by the Tribunal. Regardless of whether s 501(1) has any valid application in the context of a Protection (Class XD) visa, it is the decision made under that provision that is, for all practical purposes, the operative decision that denies him a Protection (Class XD) visa. For that reason, I have concluded that I should review the decision that has been made under s 501(1) and not defer the matter until the resolution of the appeals in BAL19 and other cases on the point.

There is a second reason why I have proceeded to review the decision made under s 501. That arises from the nature of the Tribunal bound to come to the “correct or preferable decision”.[47] That is to say, it must make the decision that is correct having regard to the legislative context in which it is made and on the basis of the evidence it has been given. If the legislative context permits a discretionary decision to be made, the decision that is made must also be the decision that is, having regard to the legislative context, the preferable decision of those that could have been correctly made.
[47] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 at 68; 589; per Bowen CJ and Deane J and Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1 at 424-425; 43; 4-5 per Brennan J

In deciding what is correct in the legislative context, careful regard must be had to previous cases decided by superior courts and to their interpretation of the legislative context in which the decision is made. The extent to which the Tribunal is bound by those cases may differ according to whether the legislative context requires consideration of common law principles or whether the consideration it requires is limited to matters of statutory interpretation. This issue was considered by Gummow J in Brennan v Comcare:[48]
[48] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542; Burchett, Ryan and Gummow JJ
“ If Ogden^[[49]^] has any significance for this appeal, it is the statement of their Lordships ([1970] AC at 127):
[49] Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121 at 127; 126 per Lord Upjohn delivering the advice of the Privy Council
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must be beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
Those remarks apply a fortiori where what is involved is the translation of remarks construing one statute to the construction of another. They also point to a significant difference in the tasks of the courts in applying the common law and in construing statutes.
The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgments. The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.
The distinction is usefully expressed in the following passage from Judge Posner's work The Problems of Jurisprudence, 1990, page 248:
Translation may be imperfect and alter the meaning of the original doctrine; nevertheless many common law doctrines have a stable meaning, though expressed in a variety of different ways. We are not afraid that we would lose the meaning of negligence if we put it in different words from those used by Learned Hand, or William Prosser, or some other authoritative expositor of the concept.
Statutory law differs in that the statutory text - the starting point for decision, and in that respect (but only that respect) corresponding to judicial opinions in common law decision making - is in some important sense not to be revised by the judges, not to be put into their own words. They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute - that is, interpret the statute. (There is a sense in which common law judges ‘interpret’ common law, but it is the sense in which ‘interpretation’ means ‘understanding’.)”[50]
[50] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at [61]-[64]; 572-573; 633-634; 559-560

The relevance of the reference to the common law and the difference in the process of reasoning is illustrated by a passage from the judgment of Windeyer J in Damjanovic & Sons Pty Ltd v The Commonwealth[51] (Damjanovic):
“… Analogy – not in the strict mathematical sense, but in the sense of resemblance of facts – has long had a great place in our system of law. It is at the base of the method of precedent in the common law. … [R]easoning by analogy is a rather different process in the development of the common law from its use in the interpretation and application of a statute or of the Constitution. Sir Owen Dixon, in an extra-judicial address he delivered in 1933 (reprinted in Jesting Pilate (1965), p. 13), said of the common law that
‘it has undergone a continuous growth and expansion accomplished by continual deduction and induction. By deduction, a new application is given to an existing principle; many single instances having been thus produced, in course of time a new or developed principle is discerned in them and expounded. By this process of imperfect induction, the secondary principle is established as part of the doctrine of the common law, and plays its part in turn in the production of still more doctrine’.
This, I would respectfully say, is a wholly apt description of the processes of the common law. It points I think the contrast with expositions of the effect of statutes and codes. The process is then one of deduction and subsumption, rather than of imperfect induction. The words of the enactment provide the major premise. The result is not, or ought not to be, the establishment of any secondary principle embodied in new words, but at most the provision of an illustration of the effect in a new setting of the original principle expressed in the original words.”[52]
[51] [1968] HCA 42; (1968) 117 CLR 390; Barwick CJ, McTiernan, Kitto, Taylor, Menzies and Windeyer JJ
[52] [1968] HCA 42; (1968) 117 CLR 390 at 408-409

It would be a rare instance in which the principles in these cases would not be applicable. Normally, the Tribunal would follow an interpretation by the Federal Court in the interpretation of a legislative scheme. When personal liberty is at stake, I think that circumstances justify consideration of whether an alternative interpretation of the interplay between ss 36 and 501 might be open. The alternative interpretation is consistent with the reasoning of Rares J regarding the second issue in BAL19 directed to the differences in the manner in which each of ss 36(1C)(b) and 501(6)(d)(v) formulates the level of risk that a person presents to the Australian community. His Honour summarised the amendments that had been made by Schedule 5 to the MAPLA Act regarding criteria for a protection visa, including s 36(1C), complementary definitions in ss 5H to 5M and the insertion of s 197C. After setting out relevant passages from Articles 32 and 33 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Refugees Convention), Rares J set out the following passage, with emphases added, from the Minister’s Second Reading Speech to the House of Representatives on 25 September 2014:[53]
[53] Hansard, House of Representatives; 25 September 2014 at 10547-10548
“Schedule 5 of the bill will make clear that the removal power is available independent of assessments of Australia’s non-refoulement obligations, which are addressed in the broader assessment process where a noncitizen meets the circumstances specified in the express provisions of section 198 of the Migration Act. This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.
Schedule 5 of the bill will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions—not those who seek to direct us otherwise from places outside this country. The new framework clearly sets out the criteria to be satisfied in order to meet the new statutory definition of a ‘refugee’ and the circumstances required for a person to be found to have a ‘well-founded fear of persecution’, including where they could take reasonable steps to modify their behaviour to avoid the persecution.
Let me be clear, the government is not changing the risk threshold required for assessing whether a person has a well-founded fear of persecution. Under the new framework, refugee claims will continue to be assessed against the ‘real chance’ test, which has been the test adopted by successive governments, in line with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.
The bill also clarifies the interpretation of various protection related concepts such as:
the standard of effective state and non-state protection;
the test for assessing whether a person can relocate to another area of the receiving country; and
the definition of ‘membership of a particular social group’.
The new framework will also clarify those grounds which exclude a person from meeting the definition of a refugee or which, upon a person satisfying the definition of a refugee, render them ineligible for the grant of a protection visa.
(bold emphasis added)”[54]
[54] [2019] FCA 2189 at [35]
Against this background, Rares J said:
“64 In enacting s 36(1C), the Parliament determined, consistently with Art 33(2) of the Refugees Convention, that a person would be eligible to be granted a protection visa if he or she is not a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community on the premise that the person had been convicted of a particularly serious crime. The criterion in s 36(1C)(b) required the existence of reasonable grounds for the Minister to consider that the person was actually (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that he or she would represent) a danger to the Australian community, and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.
65 The particular importance of s 36(1C)(b) is that it gives effect to the Parliament’s stipulation that a person whom the Minister does not have reasonable grounds to consider had been convicted of a particularly serious crime, was eligible to be granted a protection visa, regardless of the danger he or she may be to the Australian community. The legislative purpose of that stipulation was to ensure that such a person would not be refouled (subject, of course, to other protective criteria in s 36(1B), (1C)(a) and (2)), despite the danger he or she may be to the Australian community, because that person, in those prescribed circumstances, consistently with Art 33(2) of the Refugees Convention, was not to be exposed to the real chance of persecution of which he or she had a well-founded fear.
66 In contrast, s 501(6)(d)(v) provided that a person did not pass the character test if there were a risk that he or she would represent a danger to the, or a segment of the, Australian community. That criterion operated by reference to the existence of a (i.e. any) risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk.
67 There would be no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament’s interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.”

His Honour referred to the principle that, ordinarily, general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise. He cited the joint judgment of Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia[55] when they said:
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
(emphasis added)”[56]
[55] [1932] HCA 9; (1932) 47 CLR 1 at 7
[56] [2019] FCA 2189 at [68]

Section 501 does not prevent the grant of a visa under s 65(1)(a)(iii), Rares J said. Rather, it creates a discretionary power to refuse a visa in certain defined circumstances. Section 36 does not provide hat an applicant for a protection visa, who satisfies ss 36(1B), (1C) and (2), may nevertheless be refused a visa under s 501(1).
“Importantly, s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). If that were the intention of the Parliament, then the specific and narrow criteria in s 36(1B) and (1C) that give statutory effect to Australia’s non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless that the different criteria in s 36(1B) and (1C) had been met. And, equally, s 197C could then apply to a person who actually met the criteria in s 36(1B) and (1C) that the Parliament specifically enacted as objective preconditions for the grant of a protection visa, if the Minister were free to use a different power with different and less stringent standards (namely, that in s 501(1) or an analogue) in a manner that would put Australia in breach of its international obligations under Arts 32 and 33(2) of the Refugees Convention.”[57]
[57] [2019] FCA 2189 at [71]

Following the amendments in Schedule 5 to the MAPLA Act, the criteria for a protection visa have codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Migration Act, Rares J said, and the Refugees Convention. In his opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for, or holder of, a protection visa so as to exclude the availability of s 501 or its analogues as a basis on which to refuse a protection visa.

I respectfully agree with the reasoning of his Honour except in his conclusion. Parliament has sought to codify its international non-refoulement obligations. Sections 35A(6) and 36 do exhaustively deal with criminal history and behaviours of an applicant for, or holder of, a protection visa. Where I respectfully disagree with his Honour is in the characterisation of what it is that Parliament has done in the course of its codification.

When regard is had to the whole of Part 2 of the Migration Act, it is apparent that Parliament has separated into two parts the task of coming to a decision whether a person is, or is not, granted a visa. The first task is to assess whether a person has made a valid application for a visa: s 46. The Minister must not consider an application that is invalid: s 47(3). In order for a Class XD visa to be valid, it must meet any applicable criteria under the Migration Act and the Migration Regulations relating to visas of that class: s 46AA(4)(a). The criteria for a Class XD visa are those set out in s 36 and those prescribed by the Migration Regulations under s 31(3): s 35A(6). This is the time for considering the codification of the obligations under the Refugees Convention set out in s 36. If those criteria are not met, the application is not a valid application. If the criteria are met, the application is a valid application.

The second task for the Minister then becomes the consideration of whether to grant or refuse the visa. That is his obligation under s 65. That section pays no regard to Australia’s non-refoulement obligations. It looks only to any criteria prescribed in the Regulations, (which is that the applicant is in Australia in the case of a Subclass 785 visa[58]), the health criteria, the payment of any relevant charges and the application of particular sections of the Migration Act including s 501.
[58] Migration Regulations; Schedule 2; cl 785.411

When viewed in this way, it is seen that the provisions of s 36 are criteria that have to be fulfilled. Each is subject to its own requirements and qualifications but one criterion does not qualify another. The word “criterion” is consistently used in s 36. It means “… a standard or principle on which to base a judgment….”.[59] In s 36, it is the applicant for a protection visa who must satisfy but of the criteria in ss 36(1B) and (1C) and at least one of the criteria in s 36(2). Satisfying those criteria depends on decisions made, or actions, by others. In the case of s 36(1B), the action of another is that the Australian Security Intelligence Organisation has not assessed him or her to be, directly or indirectly, a risk to security. Section 36(1C) depends on the applicant’s not being a person whom the Minister considers on reasonable grounds is a danger to Australia’s security and so on. The same is true of s 36(2)(a) although this time the criterion is that the Minister is satisfied that the applicant is a non-citizen in respect of whom Australia has protection obligations. A requirement that the Minister be satisfied of certain matters requires him or her to make a decision whether he or she is satisfied but none of them requires, or permits him or her to decide whether to grant or refuse a visa.
[59] Chambers 21st Century Dictionary (1999), reprinted 2004) (Chambers)

The public interest criteria are no different in their construction. PIC 4001, for example, refers to the character test. It does not define that test in the Migration Regulations but the test is that referred to in s 501 of the Migration Act. Each of the four paragraphs describes a decision that the Minister might make if he or she were to make a decision under s 501 other than a decision refusing the visa. None of them gives the Minister the power to grant or refuse a visa.

The same is true when regard is had to the power given to the Minister by s 116(1) to cancel a visa if satisfied, among other grounds, that:
“(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa)the decision to grant the visa was based, wholly or partly, on fact or circumstance, and that fact or circumstance did not exist; …”

A clear distinction is drawn between the decision made to grant the visa and the existence of a particular fact or circumstance on which the decision is based.

This construction of s 36 as a provision that prescribes criteria that an applicant for a protection visa must satisfy but that does not confer power to grant or refuse an application for a protection visa is borne out by s 411 when it sets out what is meant by a “Part 7 – reviewable decision”. Putting aside decisions made before 1 September 1994 and exclusions set out in s 411(3), a Part 7 – reviewable decision was one of the following:
“(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i)subsection 5H(2), or 36(1B) or (1C); or
(ii)paragraph 36(2C)(a) or (b);
(d)a decision to cancel a protection visa, other than a decision that was made because of:
(i)subsection 5H(2), or 36(1C); or
(ii)on assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979) or
(iii)paragraph 36(2C)(a) or (b).”[60]
[60] Migration Act; s 411(c) and (d) A decision to refuse to grant or to cancel a protection visa by reason of s 5H(2), 36(1B) or (1C) or ss 36(2C)(a) or (b), is reviewable by the Tribunal in its General Division.

A Part 7 – reviewable decision is reviewable in the Tribunal’s Migration and Refugee Division. In describing the decisions that are reviewable, s 411 does not refer to decisions made under the provisions it sets out. It does not describe the decisions by reference to the exercise of powers under those provisions. It describes them in terms of a decision to refuse to grant or to cancel a protection visa that “was made relying on” (emphasis added) one or other of the provisions it prescribes. Those provisions set out criteria and not powers. The power to refuse to grant, or to grant, a visa of any class is set out in s 65 and the power to cancel in s 116 of the Migration Act.

What is the relationship between s 36(2C) and PIC 4001? Section 36(2C) has its origins in the Refugees Convention and other relevant conventions. Before Australia ratifies international conventions, those conventions have no standing in Australian law. Once ratified by the executive government, they continue to fall outside Australia’s law but:
“… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act …[See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266], particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention … [cf Simsek v MacPhee (1982) 148 CLR at 64]) and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.”[61]
[61] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206 at 291; 365; 216-217; Mason CJ and Deane J

Ratification may also influence Australia’s domestic law:
“… Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party …, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law …. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations …
Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law …. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials …. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.”[62]
[62] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206 at 287-288; 362-363; 214-215; Mason CJ and Deane J

For the purposes of this case and in summary, if Parliament enacts legislation consistent with international conventions ratified by Australia, the substance of those international conventions become part of Australian law to the extent to which it has been incorporated in that legislation. To the extent that it has not been incorporated and in the absence of any statutory or executive indications to the contrary, the international conventions continue to create a legitimate expectation that administrative decision-makers will act in accordance with them.

By providing in s 35(6) that the criteria for a class of protection visas are set out in both ss 36 and the Migration Regulations and by providing in s 197C that, for the purposes of s 198, Australia’s non-refoulement obligations are irrelevant, Parliament has made clear that it is not incorporating into Australian law the non-refoulement obligations as they are expressed in any international convention, including the Refugees Convention. Parliament is going further than that, though. In enacting s 197C, it is saying to the Executive Government that, even though it has ratified the Refugees Convention, it need not act in accordance with the terms of that convention or in accordance with its international obligations. It is not for this Tribunal to comment on such matters but there are international bodies such as the United Nations Commission on Human Rights that monitor on Australia’s response to its international obligations including the operation of its domestic law in respect of its international obligations. A consequence of Australia’s domestic law is that there can be no legitimate expectation that Minister or his or her delegates will act in accordance with the non-refoulement obligations under the Refugees Convention.

When seen as provisions prescribing criteria and not as provisions conferring power, the differences between s 36(2C) and PIC 4001 cannot be viewed in terms of the power to grant or to refuse an application for a protection visa. Principles relating to the reconciliation of general powers and powers operating in a specific context have no application. In particular, what might be thought to be the more general criterion in s 501(1) are not displaced by, or inconsistent with, the particular criterion in s 36(2C), which applies to protection visas. Parliament has enacted a codified form of Australia’s obligations under the Refugees and other conventions but it has made it clear that it is not enough merely to fulfil those criteria in order to be granted a protection visa.
THE EVIDENCE
Sentencing remarks relating to conviction for Reckless Wounding
YYKF was charged with Reckless Wounding contrary to s 35(4) of the Crimes Act 1900 (NSW) on or about 21 November 2013. He applied for bail on 22 November 2013 at the Burwood Local Court and was refused.[63] It is apparent from the transcript of a later bail application heard soon after his conviction and the imposition of the sentence on 29 May 2014 that he had been detained at Villawood Immigration Detention Centre (Villawood IDC) following his arrest.[64] That would mean that, although he had subsequently been granted bail, it had been granted on condition that he remain in immigration detention. I also note that YYKF had pleaded guilty to the charge at some point and then applied to traverse, or set aside, his plea. His application to traverse his plea was refused by Barko LCM at an earlier time.[65]
[63] Bundle of Relevant Documents on Remittal; Exhibit 1 at 72
[64] Transcript; Local Court Downing Centre before Milledge, 29 May 2014
[65] Buscombe LCM refers to that when he sentenced YYKF on 29 May 2014.

The New South Wales Police had prepared a Facts Sheet for the purpose of a bail hearing heard earlier on 22 November 2013. When YYKF came before the Local Court Downing Centre to be sentenced by Buscombe LCM, reference was made both by YYKF’s solicitor and by the Magistrate to facts that had previously been handed up prior to the application to withdraw his plea of guilty, which was refused. That application had been heard at some time between 22 November 2013 and 29 May 2014. YYKF’s solicitor agreed that the facts remained as those previously handed up.[66] I do not have a copy of those facts as handed up to Buscombe LCM but I do have the precis of facts referred to in his sentencing remarks and to the summary later made by Judge Lerve of the District Court of New South Wales in delivering his judgment on the appeal YYKF had lodged against the severity of his sentence.
[66] Transcript; Local Court Downing Centre before Buscombe LCM, 29 May 2014

YYKF’s solicitor informed the Court that the victim of YYKF’s actions was present to support him. Buscombe LCM said in sentencing YYKF:
“The facts indicate that this was a very serious example of alcohol related violence, in which the offender stabbed with a pair of scissors the victim of the offence. Very fortunately, the victim did not suffer a major injury but the wound required stitches at Westmead Hospital.
I have had regard to the fact that the offender is an Hazara person claiming refugee status in Australia. I have had regard to his age and the fact that he has no prior convictions for violence in Australia. I have also had regard to the content of the pre-sentence report and the fact that, upon completing any sentence that I impose, it is highly likely that he will be deported. In my opinion, the only appropriate sentence is one of fulltime imprisonment.
HE IS CONVICTED AND SENTENCED TO A FIXED TERM OF IMPRISONMENT FOR FOUR MONTHS. THAT IS FROM TODAY, 29 MAY. HE IS TO BE RELEASED FROM CUSTODY ON 29 SEPTEMBER 2014.”

YYKF immediately applied for bail and it was heard on the same day; 29 May 2014. Milledge LCM granted his bail application on condition that he remain as a detainee with what is now the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Department). If he ceased to be a detainee, his bail would be refused. In the course of the hearing, Milledge LCM commented:
“… I’ve read the facts, extremely serious facts. Also, I think he’s very fortunate that they charged him with the offence that they did. I don’t know the reasoning behind that. It certainly seemed more intentional than the nature of the charge. In any event, that’s got nothing to do with me. It’s only that I see it as a very, very serious matter. …”

The sentencing remarks of Judge Lerve on appeal were delivered on 3 July 2014:
“… I note from the papers that it is referred to as a domestic violence related offence but upon a closer look at the facts, it is an incident that occurred between a number of men that were sharing a house rather than the usual type of domestic violence with which this Court is met on far too frequent a basis.
It seems that sometime late at night on 20 November last year the victim who shares the same ethnicity and background as the appellant had been drinking together and an argument arose. Offensive words were used between them. The appellant struck the victim and the victim retaliated. The victim left through the front door but what then occurred is that the appellant armed himself with a pair of scissors, 15 centimetres in length, which he retrieved from the bedroom area and ultimately in the course of the dispute where the appellant followed the victim the appellant struck the victim with those scissors causing what is described as a 5 millimetre long wound to let axillar region which required some suturing.
Reckless wounding is a result type offence …. Given the fact that the wound was 5 millimetres in length I can reasonably infer that the number of sutures would have been very limited and there is no reason for me to assume other than that the victim has completely recovered.
Nevertheless it is a serious matter in that it involved the appellant deliberately arming himself with a cutting weapon, namely the scissors, pursuing the victim or at least following him and then striking him in the right hand with a pair of scissors. It is probably a matter of good luck more than anything else that nothing else occurred.
The appellant, I accept, is a 24 year old asylum seeker …. He is seeking asylum because of issues relating to ethnic and religious persecution he apparently suffers. I see no reason to doubt what is put to me in that regard. He has been in immigration detention for seven months. That must be seen as more onerous than a quasi-custody. I also accept what is put to me about the victim apparently visiting the appellant whilst in custody.
In the circumstances it seems to me an appropriate order, given the fact of custody, is to confirm the sentence but backdate it. I note both counsel did not seek to be heard about that. Quite frankly it seems to me there needs to be a sentence of full-time custody on the issue of denunciation given the nature of the offence, that is to say, … [deliberately] arming himself with a cutting weapon.
The appeal is dismissed. The conviction and sentence is confirmed but I date that fixed term of four months from 3 March 2014 which means it expired at midnight last night, 2 July, 2014. …”[67]
[67] Exhibit A
The practical outcome of the sentencing process was that YYKF had been granted bail on the basis that he continue to be detained at Villawood as he had been since shortly after his arrest on or about 21 November 2013. He had spent 12 days in custody before being bailed and then remained in bail. Although sentenced to four months’ imprisonment, YYKF was never incarcerated.

At the hearing, YYKF agreed that he had chased the victim, whom I will call Mr H, down the street after he had stabbed him inside the house with the scissors. He had done so wielding a 30cm kitchen knife that he had taken from the house after the scissors had been taken from him by another person in the house.

YYKF said that he had first started to drink whisky in Pakistan and continued to do so in Australia two or three times each week. He had been drinking on the night of the offence with the scissors. The police refer to his eyes’ being bloodshot and glazed, to his smelling strongly of intoxicating liquor and to his breathing and movements being erratic.[68] YYKF said that he had known that he had been acting illegally when he drove on an earlier occasion after drinking whisky. He tried to reduce his drinking to a maximum of two cups.
[68] Bundle of Relevant Documents on Remittal: Exhibit 1 at 75

Incidents in detention

I have been given a list of 33 incidents that Serco Immigration Services (Serco) has reported in relation to YYKF.[69] They are rated as either Minor or Major Incidents. Of the 33, eight have been categorised as “Use of Force – Planned” falling into Category 1 as Minor Incidents. I do not pay them any regard because, in the absence of any evidence to the contrary, planned movements of detainees usually result in their being restrained in some way irrespective of any risk they pose. They are recorded as “incidents”. I refer to two incidents as examples of the types of circumstances in which there would be a planned use of force.

[69] Exhibit E

One was recorded on 28 September 2018 as “Use of Force – Planned Category 1 – Minor Incident”. When regard is had to the Incident Detail Report for that day, it is seen that he was one of 34 detainees about whom the following was written:
“Planned use of force for the application of Saf-Lok mechanical restraints to 34x detainees transferring from Christmas Island IDC to the mainland via charter.”[70]

Nothing further was written against the particular entry made in respect of YYKF in the pages that followed.[71] The second incident was the subject of an Incident Detail Report. It related to a Category 1- Minor Incident that occurred on 14 February 2019 related to his being transported from the Brisbane ITA to a radiology service.[72]

[70] Bundle of Supplementary Relevant Documents; Exhibit 2 at 388

[71] Exhibit E and Bundle of Supplementary Relevant Documents; Exhibit 2 at 394

[72] Bundle of Supplementary Relevant Documents; Exhibit 2 at 417

That leaves 25 incidents with the earliest dated 20 July 2012 and the latest dated 14 February 2019. I do not have Incident Detail Reports earlier than 5 October 2017. Despite that, I can draw a conclusion from the eight incidents categorised a “Use of Force – Planned” that the earliest incident was such an incident. I draw that conclusion from the reference to it in the table of incidents in Exhibit E as “Transfer btwn facilities” on 20 July 2012. That brings to nine I would include in that category.

The remaining 24 entries are categorised by reference to participation type i.e. involved, alleged offender and alleged victim. Beginning with those in which YYKF was involved, they include the nine transfers or transfers for medical reasons that I have identified. Putting those to one side and relying on the information I have in Exhibit E and in the limited number of Incident Detail Reports, I have identified seven in which YYKF was said to have been “Involved”. Of these, I note that three of these led to his being placed in the Behaviour Management Unit.[73] The incidents are:
[73] The condiment bottle incident on 16 April 2016, the incident in which the screw driver was found in the room he shared with another on 5 October 2017 and the spitting incident on 4 September 2018.

Date

Incident

Level of Incident

Facility

Details

27 December 2013

Disturbance - Minor

Minor

Villawood IDC

26 detainees did not attend the mess for their evening meals. They complained about the quality of the meals. Officers observed them going about their normal activities and eating noodles and toast and consuming liquids in the dormitory.[74]

22 August 2014

Use of Force

Major

Villawood IDC

Unplanned force was used to prevent YYKF and another detainee from fighting.[75]

22 August 2014

Assault -Minor

Minor

Villawood IDC

The fight was started by the other detainee YYKF hit the other detainee in the back of the head and the other detainee hit YYKF on the nose. They apologised to each other, shook hands and said that they had made up. Both were reminded of their rights and responsibilities.[76]

10 September 2014

Contraband found

Minor

Villawood IDC

A search of a room that YYKF shared another led to the discovery of contraband. YYKF admitted ownership of one mobile phone and his room sharer admitted ownership of two Samsung mobile phones. Neither detainee admitted ownership of 4 phone chargers plugged into the wall, 1 phone cable, 10 unknown white tablets, 1 new Optus Sim card, 1 new Lyca Sim card, 1 unused Optus Phone card and 4 used Optus phone cards. Both were reminded of their rights and responsibilities.[77]

YYKF’s evidence at the hearing was that he had not been taking any tablets; they belonged to his roommate.

9 December 2014

Abusive/Aggressive Behaviour

Minor

Villawood IDC

YYKF and another detainee attended at the office asking to use the radio. The officer asked YYKF for his identity card but YYKF became agitated and told the officer to “Fuck off this is not your radio.” The officer told YYKF that his identity card was required so that the location of the radio was known. YYKF was reminded of his rights and responsibilities.[78]

16 April 2016

Use of Force

Major

Yongah Hill IDC

After becoming abusing servery staff and smashing condiments and spreading them on the floor, YYKF was restrained and placed in the Behaviour Management Unit.[79]

5 October 2017

Contraband found

Minor

Christmas Island

Contraband found during fabric check of a room occupied by YYKF and another detainee. The items were what appeared “… to be a partly constructed tattoo gun, 1 x broken speaker, multiple electrical wires, 1 x implement constructed from a teck screw with a bound handle which appears to be a shiv or screw driver.”[80]

The incident was reported as closed on 7 November 2017.

YYKF’s evidence at the hearing was that the implement was a screw driver and not a shiv and that it belonged to the man who lived with him. That man used the screw driver to mend the speaker.

4 September 2018

Use of Force

Major

Yongah Hill IDC

Detainees were being transferred from Yongah Hill IDC to Christmas Island. They were being pat searched before departing when YYKF “… became non compliant and aggressive towards Serco staff. Unplanned use of force was applied to complete the pat search to ensure that the detainee did not have anything with which he could self harm … [or] harm others. Detainee remained non compliant and staff applied body belt to ensure detainee did not harm himself and as he attempted to spit at Serco staff, a spit hood was applied. …’[81]

YYKF’s evidence at the hearing was that he did not spit and had co-operated. There is a video recording of the incident.

The Minister had not been able to locate any video recording of the incident.

Date	Incident	Level of Incident	Facility	Details
27 December 2013	Disturbance - Minor	Minor	Villawood IDC	26 detainees did not attend the mess for their evening meals. They complained about the quality of the meals. Officers observed them going about their normal activities and eating noodles and toast and consuming liquids in the dormitory.[74]
22 August 2014	Use of Force	Major	Villawood IDC	Unplanned force was used to prevent YYKF and another detainee from fighting.[75]
22 August 2014	Assault -Minor	Minor	Villawood IDC	The fight was started by the other detainee YYKF hit the other detainee in the back of the head and the other detainee hit YYKF on the nose. They apologised to each other, shook hands and said that they had made up. Both were reminded of their rights and responsibilities.[76]
10 September 2014	Contraband found	Minor	Villawood IDC	A search of a room that YYKF shared another led to the discovery of contraband. YYKF admitted ownership of one mobile phone and his room sharer admitted ownership of two Samsung mobile phones. Neither detainee admitted ownership of 4 phone chargers plugged into the wall, 1 phone cable, 10 unknown white tablets, 1 new Optus Sim card, 1 new Lyca Sim card, 1 unused Optus Phone card and 4 used Optus phone cards. Both were reminded of their rights and responsibilities.[77] YYKF’s evidence at the hearing was that he had not been taking any tablets; they belonged to his roommate.
9 December 2014	Abusive/Aggressive Behaviour	Minor	Villawood IDC	YYKF and another detainee attended at the office asking to use the radio. The officer asked YYKF for his identity card but YYKF became agitated and told the officer to “Fuck off this is not your radio.” The officer told YYKF that his identity card was required so that the location of the radio was known. YYKF was reminded of his rights and responsibilities.[78]
16 April 2016	Use of Force	Major	Yongah Hill IDC	After becoming abusing servery staff and smashing condiments and spreading them on the floor, YYKF was restrained and placed in the Behaviour Management Unit.[79]
5 October 2017	Contraband found	Minor	Christmas Island	Contraband found during fabric check of a room occupied by YYKF and another detainee. The items were what appeared “… to be a partly constructed tattoo gun, 1 x broken speaker, multiple electrical wires, 1 x implement constructed from a teck screw with a bound handle which appears to be a shiv or screw driver.”[80] The incident was reported as closed on 7 November 2017. YYKF’s evidence at the hearing was that the implement was a screw driver and not a shiv and that it belonged to the man who lived with him. That man used the screw driver to mend the speaker.
4 September 2018	Use of Force	Major	Yongah Hill IDC	Detainees were being transferred from Yongah Hill IDC to Christmas Island. They were being pat searched before departing when YYKF “… became non compliant and aggressive towards Serco staff. Unplanned use of force was applied to complete the pat search to ensure that the detainee did not have anything with which he could self harm … [or] harm others. Detainee remained non compliant and staff applied body belt to ensure detainee did not harm himself and as he attempted to spit at Serco staff, a spit hood was applied. …’[81] YYKF’s evidence at the hearing was that he did not spit and had co-operated. There is a video recording of the incident. The Minister had not been able to locate any video recording of the incident.

C.1 Consideration: general principles

Paragraph 11.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

Although ultimately a matter for judgment, the facts on which that judgment is made must be established by the evidence. Sometimes evidence will be found in what is said in any sentencing remarks, if they are available, but regard must be had to all of the evidence. Ultimately, the judgment that a decision-maker comes to must be one that is able to be explained.[121]
[121] I explained the reasons for coming to this view in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72], which I adopt.

In Re GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (GQVS),[122] I analysed the judgments in Uelese v Minister for Immigration and Border Protection,[123] Oluwafemi v Minister for Home Affairs,[124] YNQY v Minister for Immigration and Border Protection,[125] Afu v Minister for Home Affairs,[126] DKXY v Minister for Home Affairs[127] and FYBR v Minister for Home Affairs[128] regarding what is meant by the expression “expectations of the Australian community” when it is used in Direction No. 79 or its predecessor. I adopt my analysis in that case as part of my reasons in this and will set out only my summary of the principles that are common to the majority of judgments in considering the expectations of the Australian community:
[122] [2020] AATA 178 at [78]-[90]
[123] [2016] FCA 348; (2016) 248 FCR 296; 69 AAR 8 at [64]-[66]; 309; 22
[124] [2018] FCA 1389; Thawley J
[125] [2017] FCA 1466 at [76]- [77]
[126] [2018] FCA 1311; Bromwich J
[127] [2019] FCA 495 at [31]- [33]
[128] [2019] FCAFC 185; Charlesworth and Stewart JJ; Flick J dissenting
(1)The expectations of the Australian community with regard to the applicable norms for the refusal or cancellation of visas on character grounds either generally or in an individual case are neither homogenous nor significantly homogenous.[129]
[129] FYBR [2019] FCAFC 185 at [66] per Charlesworth J and [87] per Stewart J
(2)In such an environment, the government is permitted to establish what is the norm of the expectations of the Australian community.[130]
[130] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [65]; 309 per Robertson J and Afu [2018] FCA 1311 at [85] per Bromwich J
(a)In summary, the norm that the government has established is that “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”[131]
[131] [2019] FCAFC 185 at [101] per Stewart J
(3)It is not the role of the Tribunal to attempt to make its own determination of the expectations of the Australian community.[132]
[132] Oluwafemi [2018] FCA 1389 at [37] per Thawley J
(a)The Tribunal is required to give effect to those norm stated by the government.[133]
[133] Afu [2018] FCA 1311 at [85] per Bromwich J
(b)A decision-maker may not determine the community expectations in each case or equate them with his or her own view as to the preferable outcome of the review of the decision.[134]
[134] FYBR [2019] FCAFC 185 at [74] per Charlesworth J
(c)Therefore:
(i)the expectations of the Australian community cannot be measured as though they were a matter of provable fact.[135]
[135] Afu [2018] FCA 1311 at [85] per Bromwich J
(ii)they are not matters requiring evidence for the language in paragraph 6.3(2) of the Principles and repeated in paragraphs 9.3, 11.3 or 13.3, as the case may be, is a statement of the views or policy of Government.[136]
[136] DKXY [2019] FCA 495 at [64] per Griffiths J
(d)The expectations of the Australian community remain the same i.e. that people will obey the law and that, if they do not, there is a risk that they will not be granted a visa or hold one.[137]
[137] FYBR [2019] FCAFC 185 at [97]-[98] per Stewart J
(i)By its nature, the primary consideration relating to the expectations of the Australian community weighs in favour of refusal in most cases.[138]
(4)The Tribunal remains under a duty to consider all relevant circumstances of each case in order to decide whether, in that particular case, it is appropriate that an application for a visa be refused, a visa be cancelled or a revocation of a cancellation of a visa be refused.[139]
(a)That duty, which necessarily requires the exercise of discretion, arises from the language used in Direction No. 79:
(i)The use of the phrase “may be appropriate” in paragraphs 9.3, 11.3 or 13.3, as the case may be, means that the Tribunal must assess the circumstances in every case to ensure whether, in those particular circumstances, it is appropriate to cancel or refuse a visa or to refuse to revoke the cancellation of a visa.[140]
(ii)Each paragraph requires a decision-maker to have “due regard” to the government’s views but “What amounts to ‘due regard’ will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.”[141]
[138] Oluwafemi [2018] FCA 1389 at [38] per Thawley J
[139] An underlying tenet of the Principles set out at paragraph 6.3 of Direction No. 79 is:
(1)Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1); and
(2)Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraphs 6.3(3)-(6).
[140]FYBR [2019] FCAFC 185 at [73] per Charlesworth J and [97] per Stewart J
[141] DKXY [2019] FCA 495 at [31]-[33] per Griffiths J

C.2 Consideration: YYKF’s circumstances

As Direction No. 79 states, the Australian community expects non-citizens to obey its laws while they are in Australia. YYKF has not done that and was convicted on two occasions before he was placed in immigration detention. On both occasions, he was affected by alcohol but the problem went deeper in that he had difficulties controlling his anger and his responses to situations that were not to his liking. His reaction to finding someone sitting in what he regarded as his chair is but one example. As I have explained, though, YYKF is learning to control his responses and this is demonstrated in the drop in incidents of any kind in immigration detention since the middle of 2016. He has done that voluntarily and by taking the courses and programs that are available to him in immigration detention. In light of the progress he has made, I do not find that he presents an unacceptable risk to the Australian community. In view of their having been committed in 2013 and given the steady and significant improvement in his behaviour since 2016, I find that the concerns arising from his past behaviour have been largely mollified. They cannot, however, be entirely put aside for he did commit two serious offences in a short space of time. Even now, his past offences are such that the Australian community would expect that he should not be granted a visa.
Other considerations
Paragraph 12 of Direction No. 79 requires me to take into account other relevant considerations. Those considerations include, but are not limited to, international non-refoulement obligations, impact on family members, impact on victims and impact on Australian business interests.

A. Non-refoulement obligations

International non-refoulement obligations are the subject of paragraph 12.1. Paragraph 12.1(1) describes a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where that person will be at risk of a specific type of harm. Paragraph 12.1(1) states:
“A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”

A person may make claims which may give rise to international non-refoulement obligations in response to a notice of intention to consider refusing his or her application for a visa under s 501 of the Act. Alternatively, a person’s claims might be clear from the facts of the case as would be the case if he or she has applied for a protection visa.[142] Paragraph 12.1(2) states:
“The existence or non-existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.”[143]
[142] Direction No. 79 at [12.1(3)]
[143] Whether the final sentence of cl 12.1(2) is consistent with the law as interpreted by the Federal Court has been considered in the context of cl 14.1(2), which is drafted in similar terms. I considered the sentence and the relevant authorities in Re KQHR and Minister for Immigration and Border Protection [2018] AATA 684 but there is no need to consider them in this case.

Paragraph 12.1(3) provides:
“Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).”
If claims of this sort have been made and a non-citizen is able to make a valid application for another visa if the mandatory cancellation is not revoked, paragraph 12.1(4) states that:
“… it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.”

Paragraphs 12.1(5) and (6) are concerned with the situation in which the visa that was cancelled was a protection visa. That is the situation in this case and they provide:
“(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.”

A.1Consideration

A.1.1 The submissions

Both parties agree that YYKF is a person to whom Australia owes non-refoulement obligations. On behalf of the Minister, Ms Jackson submitted that significant weight may be placed on the fact that YYKF will be liable to be removed from Australia as soon as it is reasonably practicable in breach of those non-refoulement obligations. She relied on DMH16 v Minister for Immigration and Border Protection[144] (DMH16) and continued:
“Should the Tribunal affirm the delegate’s decision the applicant would be liable to be removed from Australia, … [Section 198 of the Act] and would be held in immigration detention until he could be removed. … [Section 189(1) of the Act]. Australia’s non-refoulement obligations are irrelevant to the duty to remove the applicant under the Act. … [Section 197C of the Act; see also DMH16 … [2017 FCA 448 at [18], [27] and [30]]. That is the legal consequence of a decision to affirm the visa refusal.”[145]
[144] [2017] FCA 448; (2017) 253 FCR 576; North ACJ
[145] Respondent’s Written Closing Submissions at [25]

It remains possible that the Minister might exercise his non-compellable discretionary power under ss 48B or 195A of the Migration Act or make a residency determination under Subdivision B of Division 7 of Part 2 of the legislation. Ms Jackson was instructed that the Minister was not presently considering YYKF’s case for intervention under any of these three provisions. Despite the fact that non-refoulement obligations are owed to YYKF, the legal consequences of the Tribunal’s decision must be appreciated. In any event, those legal consequences do not outweigh other relevant considerations.

On behalf of YYKF, Mr Blades submitted that Australia’s non-refoulement obligation is the foundation of a very powerful reason why he should be permitted to stay. Mr Blades referred to the reasons for decision of Deputy President Rayment in BHKM and Minister for Immigration and Border Protection:[146]
“ To sum up in relation to the non-refoulement consideration, it is in my opinion there is a very powerful discretionary reason why the reviewable decision should be set aside. A breach of a treaty to which this country is a party is not in the best interests of Australia, it is not consistent with the dictates of good government. The government policy to which I have referred in paragraph 52 above is one entirely consistent with the best interests of the country and with the dictates of good government, and, in the proper exercise of discretion, it, also, ought to be taken into account by decision-makers acting under Direction 65 and s 501(1).”[147]
[146] [2018] AATA 3
[147] [2018] AATA 3 at [68]. There are no differences in the drafting of cl 12 between Direction No. 65 and Direction No. 79.

A.1.2Consideration: BDQ19 v Minister for Home Affairs and non-refoulement obligations

I will start with the judgment of Kerr J in BDQ19 v Minister for Home Affairs[148] (BDQ19). His Honour was concerned with a case in which the Tribunal had affirmed a decision of a delegate of the Minister refusing to revoke the cancellation of BDQ19’s Class CD Subclass 851 (Resolution of Status) visa (RS visa). The RS visa had been cancelled under s 501(3A) and the decision refusing to revoke the cancellation had been made under s 501CA(4). Both the delegate and the Tribunal had to comply with Part C of Direction No. 65, which is the predecessor of Direction No. 79.[149] That is the Part setting out directions relating to decisions made under s 501CA(4). Clause 14.1 in Part C was written in precisely the same terms as cl 12.1 in Part B in both Direction No. 65 and Direction No 79.
[148] [2019] FCA 1630
[149] Migration Act; s 499(2A)

Kerr J agreed with the concession made by both parties that the last sentence of cl 14.1(6) (and so of cl 12.1(6)) is inconsistent with the Migration Act. The last sentence reads: “Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.”

Although he was concerned with an RS visa and cl 14.1, Kerr J turned his attention to cl 12.1, which deals with the refusal of a visa application. He focused specifically on the second sentence in cl 12.1(2) which explains why “The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia.” That is the opening sentence of cl 12.1(2). The reason for that conclusion is set out in the second and final sentence of cl 12.1(2):
“This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.”

To understand the relevant passage from his Honour’s judgment, I need to mention that he did not agree with a conclusion that I had reached in Re PRHR and Minister for Immigration and Border Protection[150] (PRHR) that the second sentence is incorrect since the enactment of s 197C of the Migration Act. I explained that, “If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. ….[151] I did so in the context of reviewing a decision made by a delegate of the Minister refusing PRHR’s application for a Protection (Class XD) visa i.e. a visa of the same class as that in issue in this case.
[150] [2017] AATA 2782
[151] [2017] AATA 2782 at [142]

In BDQ19, Kerr J said:
“ First, in my opinion, the learned Deputy President was wrong to have reasoned that the Ministerial Direction was relevantly inconsistent with the Act insofar as it stated, contextually, as cl 12.1(2) (and cl 14.1(2)) currently does, that Australia ‘will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists’.
That statement would be wrong in law only if that obligation were required to be understood as being inherently tied to a particular means of securing the posited outcome: namely, indefinite detention. However, as the Explanatory Memorandum that introduced s 197C explained, it remains open to Australia to continue to meet its non-refoulement obligations through mechanisms other than the removal powers in s 198 of the Migration Act.
Parliament was specifically advised that in removing any previous implied restraint on the removal power, Australia’s non-refoulement obligations would continue to be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under ss 46A, 195A and 417.
I apprehend nothing in the structure or terms of cl 12.1 before Deputy President Forgie, or in the identical structure and terms of cl 14.1 in this proceeding, as would require the conclusion that the general terms of subcl (2) are to be read subject to the error that all parties accept infects the last sentence of subcl (6).”[152]
[152] [2019] FCA 1630 at [57]-[60]

I have set out the provisions of s 46AA at [13] above. It has permitted YYKF to make a valid application for a Protection (Class XD) visa. I need to explain ss 195A and 417:
Section 195A
Section 195A applies to a person who is in detention under s 189. If the Minister thinks that it is in the public interest to do so, he or she may grant that person a visa of a particular class. The Minister has that power regardless of whether or not the person has applied for a visa of that class. That power is given under s 195A(2) but the Minister does not have a duty whether to consider to exercise it. That is so regardless of whether the Minister has been requested to exercise the power or any other circumstances arise.[153]
[153] Migration Act; s 195A(4)

Section 417
Section 417(1) provides:
“If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.”

The Minister’s power is limited to substituting another decision for a decision made under s 415. A decision made under s 415 is a decision made by the Tribunal after reviewing a Part 7-reviewable decision, exercising all the powers and discretions conferred by the Migration Act on the person who made the decision. A Part 7-reviewable decision is a decision to refuse to grant, or to cancel, a protection visa other than a decision made relying on ss 5H(2), 36(1B) or (1C) or 36(2C)(a) or (b).[154] Furthermore, a Part 7-reviewable decision is not a decision made under ss 201 or 501.[155]

[154] Migration Act; ss 411(1)(c) and (d)

[155] Migration Act; s 500(4)

In the circumstances of this case, s 417 has no relevance as the decision under review is not a Part 7-reviewable decision and the decision I make in this case will not be a decision made under s 415. That means that the circumstances in which the Minister may exercise power under s 417(1) do not arise. Section 46A has no relevance for that is concerned with regulating the circumstances in which an unauthorised maritime arrival may make an application. YYKF’s application for a Protection (Class XD) visa complies with s 46A and it is the decision that has been made on that application that has led to these proceedings. As he is an unauthorised maritime arrival, YYKF may not apply for another visa while he is onshore. In particular, he may not apply for a permanent Protection visa (subclass 866).

That leaves s 195A of the Migration Act, which is a discretionary decision made by the Minister. In this case, the Minister has made it clear that the Minister is not presently considering YYKF’s case under s 195A or, for that matter, under s 48B. Section 48B(1) provides that the Minister may determine, in the public interest, that s 48A does not prevent an application for a protection visa. Section 48A would otherwise prevent a person in the migration zone from making a further application for a protection visa where an earlier application has, among other things, been refused. Just as it was for PRHR, the practical outcome for YYKF is that his hands are tied because the visa he has been refused is a protection visa. That was not the case in BDQ19 for the visa in issue was an RS visa and not a protection visa. BDQ19 was not concerned with an RS visa but it is also open to speculate that his hands might have been tied in the same way for he had previously held a number of temporary protection visas.

In the circumstances of the refusal of a protection visa, it seems to me that ss 197C and 198 would require the Minister to take steps to remove the applicant if the decision under review is the refusal of a Protection visa and the Tribunal affirms that decision. Australia could not meet its non-refoulement obligations if the Minister succeeded in removing the applicant. That means that in those circumstances, the second sentence of cl 12.1(2) and related clauses such as cl 14.1(2) in Direction No. 79, or Direction 65, can have no practical application and no meaningful relevance. In another case concerning a visa refusal or cancellation that is not a refusal or cancellation of a Protection visa, there may be room to continue to meet its non-refoulement obligations as contemplated by Kerr J in BDQ19.

If the relevant country, in this case Pakistan, were to refuse to take the applicant that would leave an applicant in indefinite detention unless the Minister exercised his discretion under ss 48B or 195A. I have no evidence whether Pakistan would refuse to take YYKF but I do have an indication that the Minister is not presently considering the exercise of his discretionary power.

As the visa in issue in this case is a Protection visa and YYKF has already been found to meet the criteria in s 36 of the Migration Act, Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) is not relevant.

A.1.3 Consideration of YYKF’s circumstances

At [102]-[154] of my reasons for decision in GQVS, I analysed the various authorities considering whether a decision-maker is obliged to have regard to Australia’s non-refoulement obligations and practical consequences such as indefinite detention. A decision-maker must keep in mind legal and practical consequences of any decision he or she may make.[156] If a person does not have any entitlement to apply for a Protection visa or if the visa in issue is a Protection visa, the decision-maker is obliged to consider any non-refoulement obligations Australia owes to that person in the context of the cancellation or refusal of that visa even if he or she has not claimed them.[157]
[156] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [17]; 6 per Allsop CJ and Katzmann J; [177]-[178]; 39 per Buchanan J; Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; (2019) 164 ALD 139 at [17]; 143 per Perram J
[157] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [17]; 6 per Allsop CJ and Katzmann J and [177]-[179]; 39 per Buchanan J in which the Minister had refused an application for a Protection visa

The former Refugee Review Tribunal found the YYKF is a person to whom protection obligations are owed under the Refugees Convention as prescribed by s 36(2)(a) of the Migration Act and cl 866.22(2) of Schedule 2 to the Migration Regulations. No evidence suggests that the grounds on which that finding was made have changed. One practical outcome of refusing YYKF’s protection visa would be that he is returned to a country where he has a well-founded fear that he will suffer harm and where State protection is not available to him. That would seem to be what the Minister is presently minded to do in light of the submissions that have been made. Should Pakistan refuse to receive YYKF, he faces indefinite detention in Australia.

I have weighed those prospects against the seriousness of his criminal offending and other serious conduct as required by cl 12.1(6) of Direction No. 79. In light of YYKF’s steps to improve his behaviour and control his physical and verbal responses to the irritations and disruptions that life puts in the way, I find that his offences and conduct are not of such seriousness or ongoing concern that he should be denied the protection that, when it ratified the Refugees Convention, Australia undertook to provide those who came within the scope of that convention.

B. Impact on family members

Paragraph 12.2(1) of Direction No. 79 states:
“Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.

A.1 Consideration

If YYKF is not permitted to remain in Australia, I find that there is no impact on any immediate family members in Australia.

B.Impact on victims

Paragraph 12.3(1) states:
“Impact of a decision to grant a visa [on members] of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.”

B.1 Consideration

Mr H is the only victim who has been identified and who has given evidence. In view of the fact that the visited YYKF in custody, attended the sentencing hearing at the Downing Centre and gave evidence on YYKF’s behalf, I find that any impact of a decision to grant a visa to YYKF will be a positive impact of approbation. The other incidents in immigration detention have “blown over”. In respect of that which occurred on 22 August 2014, YYKF and the other person apologised to each other and made up.

C. Impact on Australian business interests

Paragraph 12.4 states:
“Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.”
C.1 Consideration

Refusal of YYKF’s application for a visa does not have any particular impact on Australian business interests. He has worked in Pakistan as a taxi driver but there is no suggestion that he has particular skills that cannot be provided by other people either now or in the future. He has not conducted his own business in Australia. I conclude that refusal of his application for a visa would not have an impact on Australian business interests.

CONSIDERATION

Having considered both the primary and other considerations as well as the object and underlying policy of the Migration Act, I have decided to set aside the decision made by a delegate of the Minister to refuse under s 501(1) YYKF’s application for a Visa (Class XD). I have considered YYKF’s behaviour over the course of his time in Australia. He is a man who left Pakistan fearing harm and his fears have been found to be well-grounded and accepted. His relatively brief time in the community after his arrival led to his driving conviction that was associated with his alcohol consumption. So too was his second conviction. He is well aware of that and has reduced his alcohol consumption. Incidents in immigration detention led to his being placed in the Behavioural Rehabilitation Unit on three occasions but YYKF has not only expressed his wish to improve his behaviour but has taken active steps to take advantage of the assistance that is available to him to do so. That assistance has taken the form of programs and courses, to which I have referred. The results of his efforts are shown in a marked reduction in the number of incidents. As I have also noted above, not every event recorded as an “incident” leads to the conclusion that YYKF has misbehaved. Each has to be looked at individually. When I do that and look at where YYKF has come from and where he is now, he has worked hard to address the behavioural issues that have got him into trouble and drawn him to notice in the past and has made positive progress in moderating his behaviour.

When regard is had also to Australia’s international non-refoulement obligations, the balance lies in giving him a chance to live in safety in the Australian community. The members of that community are also entitled to live in safety but, in light of the matters I have referred to, I am satisfied that the risk to their safety will be low. Should YYKF offend again as he has before, he would, of course, expose himself to the risk that his visa would be cancelled under s 501(2).

DECISION

I have decided to set aside the decision made by a delegate of the Minister refusing to grant YYKF a Temporary Protection (Class XD) visa under s 501(1) and to substitute a decision that YYKF not be refused a grant of that visa under s 501(1).

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

..........................[sgd]..............................................
Associate
Date of decision: 14 April 2020

Heard:

Final material submitted:

16 May 2019

8 October 2019

Applicant’s solicitor:

Mr David Blades
Chisholm Law

Respondent:

Ms Melinda Jackson
Australian Government Solicitor