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

ZJKT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4125 (15 October 2020)
Division:GENERAL DIVISION
File Number: 2020/4627
Re:ZJKT
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:15 October 2020
Place:Melbourne

The decision under review is affirmed.
....[sgd]....................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Visa refusal – citizen of India – Bridging E (Class WE) visa – substantial criminal record – failure to pass character test – whether discretion to refuse visa should be exercised – consideration of Ministerial Direction No. 79 – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar [2019] 373 ALR 569
Murphy v Minister for Home Affairs [2018] FCA 1924
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
PQSM v Minister for Home Affairs [2019] FCA 1540
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
Department of Foreign Affairs and Trade, Country Information Report: India (17 October 2018)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 Art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
15 October 2020
INTRODUCTION

On 1 August 2020 the Applicant asked the Tribunal to review the decision of a delegate of the Respondent, to refuse his application for a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (Cth) (the Act).[1]
[1] Exhibit R1, 11–13.
The hearing was held in Melbourne on 8 and 9 October 2020 by audio visual link. The Applicant was self-represented. The Minister was represented by Ms Jackson from the Australian Government Solicitor. An interpreter in the Hindi and Punjabi languages was provided to assist the Applicant and witnesses.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 20 October 2020.
For the following reasons, the Tribunal affirms the decision under review.
CONFIDENTIALITY
Because this matter relates to a protection-related bridging visa, s 501K of the Act mandates that the Tribunal must not publish information that may identify the Applicant or any relative or dependant of the Applicant. The Applicant will therefore be referred to by the anonym ZJKT. The names of witnesses and other details tending to identify ZJKT will not be disclosed.
APPLICABLE LEGISLATION
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and
s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions.
Section 501(1) of the Act is one of several discrete powers conferred under s 501. It provides for refusal to grant a visa if an applicant does not satisfy the Minister, or their delegate, that they pass the character test.
The character test is defined in sections 501(6) to 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa.
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if ‘the person has been sentenced to a term of imprisonment of 12 months or more.’
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. If the Applicant fails the character test, the Tribunal must determine whether the discretion under section 501(1) of the Act to refuse the visa should be exercised. Guidance in exercising the discretion is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction). Section 499(2A) mandates that the Tribunal must comply with the Direction.[2]
[2] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9]; PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:
…
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test… Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
By way of general guidance, cl 6.2 of the Direction provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
(2) …
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse…a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…of this Direction.
The principles referred to under the heading ‘General Guidance’ are reproduced below and constitute a framework within which decision-makers apply relevant considerations:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(a) of the Direction provides that in cases relating to the refusal of a visa, decision-makers must take into account the considerations in Part B of the Direction to determine whether a non-citizen forfeits the privilege of continuing to hold a visa.
If an applicant fails the character test, the following primary considerations at cl 11(1) of the Direction must be applied to the specific circumstances of the case:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
Clause 12(1) of the Direction provides a non-exhaustive list of other considerations to be taken into account:
(a) International non-refoulement obligations;
(b) Impact on family members;
(c) Impact on victims; and
(d) Impact on Australia’s business interests.
Clause 8(2) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’[3] However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78], in relation to a previous equivalent ministerial direction:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
[3] Minister for Home Affairs v HSKJ [2018] FCAFC 217.
BACKGROUND FACTS
ZJKT is a 42-year-old citizen of India. His parents, siblings and other relatives still live there.[4] His only relatives in Australia are a cousin and a brother-in-law. The former is not an Australian citizen and is in Australia on a Student Visa. The latter is an Australian citizen.
[4] Exhibit R1, 194.
ZJKT first arrived in Australia in late 2006 as the holder of a Student Visa.[5] He completed diplomas in retail bakery and business management,[6] but did not pursue a career in either field.[7] He instead worked in several roles within the service, transport and manufacturing industries.[8] Apart from a month-long international departure to visit his parents in India between July and August 2010,[9] ZJKT has resided in Australia ever since.
[5] Ibid, 78.
[6] Ibid, 206.
[7] Ibid, 36 [27].
[8] Ibid, 205.
[9] Ibid, 200 [70].
ZJKT has no biological children and does not claim other close relationships with minor children in Australia.
In December 2011 ZJKT was involved in a violent incident and remanded in custody. Prior to his committal hearing he pleaded guilty to two offences: ‘Intentionally cause serious injury,’ and ‘Intentionally cause injury.’ In early 2013 he was convicted of these offences and sentenced to seven years imprisonment for the former and two months for the latter, to be served concurrently.[10] After serving five years of his sentence ZJKT was taken into immigration detention in late 2018 where he has since remained.
[10] Ibid, 27.
The Bridging Visa ZJKT seeks[11] is related to the refusal of his Protection Visa application by a delegate of the Respondent on 9 June 2017.[12] ZJKT appealed the refusal decision to the Administrative Appeals Tribunal (differently constituted), which was unsuccessful.[13] He then appealed to the Federal Circuit Court of Australia, which was also unsuccessful. ZJKT has lodged a further appeal to the Federal Court of Australia, which is scheduled to be heard on 20 October 2020. He wants to be released into the community on a Bridging Visa until the appeal process for his Protection Visa is concluded.
[11] Ibid, 79; 118–125.
[12] Ibid, 602–605.
[13] Ibid, 652–672.
On 27 May 2020 ZJKT received a Notice of Intention to Consider Refusal of his Bridging Visa application.[14] After considering his responses, a delegate of the Respondent decided on 28 July 2020 to refuse the visa.[15]
[14] Ibid, 71–77.
[15] Ibid, 11–13.
DOES THE APPLICANT PASS THE CHARACTER TEST?
ZJKT has been sentenced to a term of imprisonment of 12 months or more and accepts he does not pass the character test.[16] Because of the combined effect of ss 501(6)(a) and 501(7)(c) of the Act the Tribunal finds he does not pass the character test.
[16] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [1].
ISSUE TO BE RESOLVED
The issue to be determined is whether the discretion under section 501(1) of the Act to refuse the Bridging Visa should be exercised.
EVIDENCE BEFORE THE TRIBUNAL
The following materials were tendered into evidence during the hearing:
(a)Documents lodged by the Respondent numbering 710 pages;[17]
(b)Statement dated 10 September 2020 from a close friend of ZJKT;[18]
(c)Online messages from a social networking site consisting of an anonymous message dated 31 March 2012 (with translation), and a purported exchange in July 2019 on social media between ZJKT and one of his victims;[19]
(d)Medical records numbering 114 pages from the International Health and Medical Services (IHMS), which provides health services within Australia’s immigration detention network;[20]
(e)Statement dated 25 March 2019 from ZJKT;[21]
(f)Statement dated 8 September 2020 from another close friend of ZJKT,[22]
(g)Statement dated 10 September 2020 from ZJKT’s cousin;[23]
(h)Statement dated 11 September 2020 from ZJKT’s brother-in-law;[24]
(i)Copy of an identity card for ZJKT’s father and assorted medical records for ZJKT’s parents, collectively numbering 15 pages;[25]
(j)Documents relating to ZJKT’s safety concerns in immigration detention, comprising six pages.[26]
[17] Exhibit R1.
[18] Exhibit A1.
[19] Exhibit A2.
[20] Exhibit A3.
[21] Exhibit A4.
[22] Exhibit A5.
[23] Exhibit A6.
[24] Exhibit A7.
[25] Exhibit A8.
[26] Exhibit A9.
Witnesses
ZJKT gave oral evidence by audio visual link from an immigration detention centre. He called four witnesses who gave evidence by telephone, three with the assistance of an interpreter.
APPLICANT’S EVIDENCE
ZJKT adopted a statement dated 5 May 2020 as his statement for this proceeding[27] and gave oral evidence lasting most of the first hearing day.
[27] Exhibit R1, 80–86.
Background
ZJKT said he completed Year 12, an Arts Degree, and a Diploma in Vocal Music while living in India. He came to Australia at the age of 28 and said he experienced difficulties adjusting to life in a foreign country. He referred to stress from loneliness, study, financial issues, work, and a perception that those he lived and interacted with took advantage of his good nature. He said this caused him stress and depressive symptoms. ZJKT returned frequently to the challenges that have confronted him during almost nine years in prison or immigration detention. He expressed disappointment that his parents had not visited him once.
Offending in Australia
ZJKT claimed to have been in an ‘extraordinary situation’ at the time of his offending and ‘couldn’t handle the pressure.’ This included having an affair with the wife of his housemate. He claimed to have been ‘young and dumb’ at the time but had since matured. When challenged that he was 33 years of age at the time of his offending, ZJKT said he lived with his parents for the first 28 years of his life and considered himself to be immature and unworldly. When pressed that he had lived independently in Australia for approximately five years prior to offending, ZJKT insisted the transition to life in Australia was difficult.
During cross-examination, ZJKT expressed reluctance on several occasions to discuss his criminal offending, stating he was ‘uncomfortable’ when others ‘dredged up the past.’ When pressed to respond, he stated that he disagreed with ‘so many things’ in the sentencing remarks, claiming that a ‘language barrier’ prevented him from fully putting forward his case at trial or understanding what the judge and lawyers were saying. When asked to elaborate on the things he disagreed with, ZJKT said the sentence he received was overly harsh. He expected to get under four-and-a-half years of imprisonment and felt the judge made an example of him. He disagreed with the sentencing judge’s concern that ‘given the right constellation of factors’ his anger and rage may ‘flare again’ resulting in the same outcomes.[28] ZJKT insisted he was not a threat to anyone and felt the judge was operating under a ‘misconception.’
[28] Ibid, 39 [39].
ZJKT claimed to be affected by alcohol at the time of his offending. When challenged that the evidence showed he only consumed one beer prior to the violent incident, he claimed to have a very low tolerance to alcohol. When challenged about the claim in his statement dated 25 March 2019 that he was ‘intoxicated,’[29] ZJKT said this is what he told police, but they chose to ignore it as a factor. He disagreed with the judge’s finding that his conduct was not attributable to alcohol. ZJKT said the sentencing judge was also incorrect to find he had stabbed a victim nine times, insisting that the photographs in evidence only showed four stab wounds.
[29] Exhibit A4.
ZJKT claimed that the stabbing victim intervened while he was punching another victim and placed him in a headlock for about one minute, which caused the ‘oxygen supply’ to his brain to be ‘cut off.’ ZJKT said he did not tell police this at the time because of a ‘language barrier.’ When asked by Ms Jackson if there was any other corroboration for the headlock claim, ZJKT said he did not have to provide ‘other evidence,’ responding: ‘You can stick to the law and I’ll stick to the facts.’ ZJKT agreed that after fleeing the scene of the incident in the stabbing victim’s car, he told a friend he acted in self-defence. He claimed to have still been affected by the residual effects of the headlock at that time, stating he could only see a ‘black hole or black clouds’ because his oxygen supply had been cut off. When challenged that he made up the headlock story to make it look like self-defence, ZJKT insisted it did occur and was not conveyed at the time because of a ‘huge language barrier.’

ZJKT agreed he was having an affair with his housemate’s wife at the time of his offending but rejected the Court’s finding that he deceived the woman’s husband. He explained this was because he was not friends with the husband and under no obligation to reveal a relationship the woman initiated. He claimed she had ‘manipulated and brainwashed him,’ which placed him under ‘big stress.’ Contrary to the Court’s finding that he was not suffering any psychiatric or psychological disturbance at the time of his offending, ZJKT claimed he was suffering ‘mental instability’ because of various pressures. He cavilled at the suggestion that the woman was a victim, despite her being present during his violent offending with her child. He claimed instead she was a ‘witness.’ When challenged that the woman was in significant fear as a result of his attack on her husband and attempt to break into their bedroom while armed with a knife, and because he had stabbed another person in the house, ZJKT only conceded it may have been an ‘uncomfortable situation’ for her. When further challenged that the woman fled the house in fear with her husband and child after ZJKT attempted to access their bedroom through an exterior window, and then removed her phone from her hand while holding a knife, ZJKT did not respond to the question directly, claiming he had not seen the child. It was only after several questions that ZJKT reluctantly accepted the woman was in fear of harm from his conduct.
Courses and rehabilitation
ZJKT referred to his good behaviour during the last nine years, claiming ‘everything had changed.’ He said that he never got angry anymore, avoided conflict situations and ‘took everything on the chin.’ ZJKT rejected the claim in a risk assessment by Corrections Victoria that he was ‘unable to control his anger.’[30] When asked about the attendant recommendation that he should undertake further rehabilitation relevant to his offending, ZJKT insisted he was found unsuitable for such programs and referred to a monthly interview record to support this.[31] ZJKT confirmed he had not undertaken any anger or violence programs while in custodial environments. When asked to elaborate on how he had learned to control his anger, ZJKT said he had demonstrated this during the last nine years by not doing anything wrong in prison or immigration detention.
[30] Exhibit R1, 231.
[31] Ibid, 268.
ZJKT agreed he was offered an opportunity to undertake group counselling while imprisoned that encompassed a violence-anger component but decided not to participate. He explained: ‘I did not want to put my issues in front of other prisoners.’ He feared that revealing his personal issues in a group setting could be exploited by others. ZJKT said he approached authorities for one-on-one counselling, which was not approved.
When asked if he had any plans for further rehabilitation if released, ZJKT said he would undertake courses or programs if directed. He felt, however, that he was ‘doing pretty good’ and did not think he had ‘anything to address at the moment.’
ZJKT said he completed numerous courses while imprisoned, including a Diploma in Hotel Management and various vocational courses in cookery, information technology, painting, warehousing and horticulture. He also referred to completing a ‘Change on the Inside Course’ during a six-week period in 2014. This course focussed on adapting to life if released. When asked if the courses he had completed would help him find work, ZJKT said finding work was never a problem for him and he was confident of doing so.
Prison incident
ZJKT was asked about the circumstances of an interaction with a female staff member while imprisoned, which resulted in an Intervention Order (IVO) being taken out against him. He claimed to have first met her in the context of his work in the prison kitchen, where she oversaw catering. He stated she was initially ‘nice, really helpful, and easy to talk to.’ ZJKT claimed she was also ‘flirty’ with him and other prisoners and gave him ‘non-stop eye contact,’ which caused him to become emotionally attached. He claimed that her attitude changed after becoming aware of his offending, and she asked him not to converse with her. ZJKT agreed he had a ‘heated conversation’ with the female staff member the next day, after she purportedly asked him ‘personal questions’ about his offending and ‘put on a show’ in front of other inmates. ZJKT said this made him feel ‘uncomfortable.’ The incident was reported to management, resulting in ZJKT no longer being able to work in the kitchen. ZJKT denied he was terminated claiming he was offered a different work role. When referred to a letter from the Deputy Commissioner of Operations stating he was ‘terminated’ from his position in the kitchen, ZJKT insisted he was reassigned.
ZJKT agreed he did not speak to the female staff member for about a month, but then thought he would ‘clear the air’ between them. He claimed to have ‘thoughts and feelings for her,’ but did not raise them previously. ZJKT said he had a ‘a normal conversation’ with the staff member, during which he told her he knew she was ‘spreading the word’ about him being ‘inappropriate with her.’ He also claimed to have stated to her: ‘I know what shit’s going on.’ As a result of this encounter, ZJKT agreed he was moved to accommodation in a different section of the prison so he could not see the female staff member anymore. He agreed that about a month later he again approached the office, claiming to have only made a passing comment. He said the officer complained and he was put in a management cell for five days. During that time, he wrote the officer a ‘personal’ letter explaining his feelings for her. He said it was the actions of the female staff member that ‘put the thought in [his] mind’ that a relationship was possible. ZJKT claimed she had previously lied to him about her marital status, told him she was single, and asked him personal questions. He claimed to have read ‘the regulations,’ which did not say a prisoner could not have a relationship with a member of the prison staff. He claimed to have persisted with contacting her because of his ‘genuine feelings,’ stating: ‘No, my behaviour was absolutely fine.’
ZJKT said the officer did not respond to his personal letter and instead filed for an interim IVO in December 2018, which the Court granted. He agreed that in January 2019 he contested the interim IVO, but the magistrate granted a final IVO in January 2019. ZJKT said his evidence was not taken into account by the magistrate, who instead preferred ‘false reports’ by prison management to cover up for the female staff member. He appealed the IVO decision because he considered it was a ‘huge misunderstanding’ and the female staff member had no reason to fear him. He stated: ‘I never said anything wrong - my letter was about what I was feeling.’ The Tribunal notes that in February 2019, after being transferred to immigration detention, ZJKT wrote to Corrections Victoriain which he accused the prison officer of ‘flirting with all the Tall guys including myself’ and claimed she had ‘instigated everything.’[32] He also denied any wrongdoing in the ASFIC.[33] ZJKT submitted a Notice of Appeal relating to the IVO through his legal representative,[34] but subsequently abandoned the appeal, which was struck out by the County Court in May 2019.[35] In his oral evidence, ZJKT said he discontinued the appeal because the process was procedurally unfair by requiring his appearance via video link instead of in person.
[32] Ibid, 157–161.
[33] ASFIC, 7.
[34] Exhibit R1, 153–155.
[35] Ibid, 165–172.
ZJKT opined that the prison at which the above incident occurred hired ‘young girls’ as officers, which he thought was inappropriate because they did not have the necessary experience to deal with prisoners. He said the female staff member who took out the IVO fell into that category, because she was young, inexperienced and ‘never had training.’ ZJKT thought it would be better if Corrections Victoria hired ‘more mature women’ who were trained and had ‘life experience.’
It was put to ZJKT that his behaviour with the prison officer was inappropriate, as reflected in the letter from a Deputy Commissioner in Corrections, referring to his persistent and unwanted contact as ‘a little troubling.’ ZJKT disagreed, claiming to have been ‘manipulated’ by the female staff member. He insisted that he handled the situation well, referred to his conduct as ‘a big achievement’ that he was ‘kind of proud of,’ and said it illustrated how far he had come since his offending. He disagreed that he was trying to deflect blame away from himself and onto the female staff member. When pressed further about the appropriateness of his conduct, ZJKT stated:
‘It was wrong for me to develop feelings, but it was natural. I tried to stop it but I couldn’t – it was nature. I was away from relationships for six-and-a-half years and she showed me some affection.’
Protective custody
ZJKT said he had suffered considerably during almost nine years in custodial environments. In July 2020 he was placed in a protected area within the detention centre as a result of threats from other detainees. He said the measure was taken by detention centre staff and not requested by him. He tendered a bundle of documents relating to his placement in protective custody.[36] ZJKT said he had lost immediate access to facilities available to other detainees and had to be escorted everywhere. This made him feel ‘really uncomfortable.’
[36] Exhibit A9.
Non-refoulement claims
ZJKT expressed reluctance on several occasions about answering questions relating to his non-refoulement claims. He felt this was unnecessary because his claims were being considered in the context of his latest Protection Visa appeal. When pressed to respond about the non-refoulement claims made in his current application, ZJKT said he feared harm from the three victims of his offending but agreed they had not threatened him personally. He claimed that his fears were based on contact made with him and some family members, including an exchange of messages with the stabbing victim on social media.[37]
[37] Exhibit A2.
ZJKT said he and his victims still had mutual friends, who told him the stabbing victim had moved to Canada in 2018, where he lived with his wife and two children. When it was put to ZJKT that the social media exchange he referred to did not contain a threat, he disagreed, stating any contact with his family was a threat. In response to questions from the Tribunal, ZJKT agreed the screenshots he provided[38] did not reflect the complete exchange of messages between him and the stabbing victim.
[38] Ibid.
When asked where the other male housemate he had attacked now lived, ZJKT said friends told him that person was returned to India by Australian authorities and lived in the same state as his parents but in a different city. When asked where the female victim now lived, ZJKT said he spoke to her in May or June 2019, and claimed she was now in another relationship and lived in Australia with her son and new partner.
ZJKT conceded that his family had not been harmed since his imprisonment in late 2011. He referred to two anonymous telephone calls his father received in 2012, claiming these originated from his victims, but could not ‘put a finger on any person at the moment.’ He was unaware of any further anonymous telephone calls to his father since 2012. ZJKT also referred to two messages he received on social media in March and April 2012, for which he provided an English translation.[39] ZJKT said his sister also received a message in 2018 but was unwilling to disclose its content or provide him with a copy. He claimed that his sister told him the person who sent it was ZJKT’s stabbing victim. When asked why there was no statement from his sister, ZJKT explained she had been too busy preparing for a wedding. ZJKT was challenged that he did not know what was in the message purportedly received by his sister, so could not be sure it contained a threat. He did not respond directly to the question, but said his father had not allowed his sister to disclose the contents, because it might cause ZJKT further stress. When asked if he had discussed the matter further with his younger sister in the context of his Protection Visa application, ZJKT said ‘she’d probably refuse’ if he asked. He only called his sister to say hello, not to discuss his ‘personal matters.’ ZJKT agreed there was no evidence to corroborate his claims about the message received by his sister. When pressed as to why any such contact constituted a threat, ZJKT said the message put his family in an ‘uncomfortable situation.’
[39] Ibid.
When asked about his claimed fear of harm from Indian Police, ZJKT again resisted answering questions. When pressed, he said he was concerned about ‘harassment,’ claiming the police would question and embarrass him on arrival in India. He claimed to have heard ‘stories from people who got deported’ that they were ‘harassed and locked up for 11 hours.’ When asked if he feared harm from anybody else in India, ZJKT said he was unwilling to talk about his non-refoulement claims any further.
Health issues
ZJKT said he experienced depression after arrival in Australia and had attempted suicide twice since being imprisoned in late 2011. He claimed to have since overcome any mental challenges and claimed to be ‘absolutely alright mentally,’ but had physical issues. He referred to being on a waiting list to see a ‘bone specialist.’ ZJKT said he is ‘physically really weak’ now because of consuming seven packets of bleach in one suicide attempt. He claimed to experience ‘sensations in [his] wrists and ankles,’ and had ‘messed up the blood circulation’ in his right shoulder. When asked why neither suicide attempt was recorded in custodial records, ZJKT said he did not report them to prison authorities. He claimed that after consuming the seven packets of bleach he did not say ‘a word to anyone’ and was able to continue with his daily routine the next day without coming to the attention of prison staff. He claimed to have also attempted suicide by hanging in 2018, explaining he had done so at 1am while ‘everyone was sleeping,’ and the attempt was not witnessed by others.
When asked if he took any medication other than paracetamol for headaches and ankle pain as reflected in the IHMS records, ZJKT said he did not. He claimed to have previously taken other medications but hated lining up for it each day and chose to stop taking it.
Family and friends in Australia
ZJKT said his only family members in Australia were a cousin and a brother-in-law. He also had two other close friends. These four people visited him in prison, but he did not converse with them very often on the telephone. He agreed that records in evidence showed he received a visit about once every three or four months. He recalled that one of his friends had brought his children along during two visits, and that the children were ‘roughly four or five years old.’ They were born while he was imprisoned. He spoke to the children ‘from time to time’ when he telephoned their father. When asked if there would be any impact on these children if he was repatriated to India, ZJKT responded: ‘I don’t think so.’
Plans if released
ZJKT said if released in Australia, a close friend who owned a business had offered him a job. He also referred to a verbal offer of accommodation from another friend, from whom there was no statement. When asked about his plans if returned to India, ZJKT said he had not considered this because he had ‘no Plan B.’ He claimed to be unable to work in India because of his ‘safety concerns’ and would therefore be financially reliant on his family who could ill afford it as retirees. ZJKT said he had not asked his parents if he could live with them but felt that would be inappropriate at 42 years of age. He claimed he could not live with other family members because he does not talk to or interact with them, and they consider him an ‘outsider.’ When asked why there was no statement from his parents or sisters, ZJKT said he asked his father who was ‘too busy and couldn’t arrange it.’ His younger sister had also recently got married and the family were quite busy with that.
Fines in Australia
ZJKT was asked about references in evidence to him having $42,000 in outstanding fines,[40] which had previously required the Sheriff to attend his residence regularly to seek payment.[41] He explained this reflected an accumulation of fines while he was a taxi driver, which he elected to serve time for concurrently in prison rather than repaying the fines.
[40] Exhibit R1, 220.
[41] Ibid, 224.
Evidence of other witnesses
There are several statements in evidence from family members and friends of ZJKT. These refer to him variously as ‘helpful,’ ‘polite,’ ‘generous,’ of ‘good moral character,’ ‘responsible and reliable,’ ‘dependable,’ ‘respected and honoured for his good behaviour,’ and as having a ‘good heart.’ The collective witness evidence is to the effect that ZJKT’s offending was out of character and he deserves an opportunity to remain in Australia.
The four witnesses who gave oral evidence at the hearing were collectively under the misapprehension that ZJKT had acted in self-defence or was otherwise provoked into violent conduct in 2011. Their evidence is summarised below.
Evidence of ZJKT’s friend
The witness adopted his statement dated 10 September 2020 as true and correct. He and his wife own a business and are willing to provide ZJKT with a job as a shop assistant, salesperson, or delivery driver. The witness had visited ZJKT twice during his imprisonment and spoke to him on the telephone. If ZJKT was removed, the witness said he would continue to support him wherever he lived because he was a good friend. He claimed ZJKT would find resettlement in India extremely difficult because ‘it’s a different culture.’ He said that for someone in ZJKT’s circumstances the ‘whole family suffers’ and people could be killed for ‘pride’ because of a ‘financial thing or a woman – they don’t want to let these things go.’ He agreed that when it came to honour killings the victims were usually women but claimed this was not always the case.
In response to questions about what he meant in his statement that ZJKT made ‘one mistake’ the witness said ZJKT told him he was involved in a fight and had acted in self-defence. When put to the witness that the Court found ZJKT’s actions were unprovoked, the witness disagreed, stating ‘no normal person can do this sort of thing’ unless they had a reason or were responding to provocation or were defending themselves. If ZJKT was repatriated, the witness said it would affect him and his wife emotionally, and they would miss him.
Evidence of ZJKT’s cousin
The witness adopted his statement dated 10 September 2020 as true and correct.[42] He is ZJKT’s cousin on his mother’s side and the only close relative ZJKT has in Australia. The witness is not an Australian citizen and resides here on a Student Visa. When asked what he knew about the circumstances of ZJKT’s offending, the witness said it started as a verbal argument after ZJKT’s male housemate used ‘dirty language’ about ZJKT’s parents. ZJKT told the witness that the stabbing victim grabbed him from behind, forcing him to act in self-defence.
[42] Exhibit A6.
The witness said ZJKT would have difficulty finding work in India due to his age and may find it difficult to survive. He claimed that although ZJKT’s parents would support him and provide him with a place to stay initially, they were ‘old now’ and their ability to support him was limited. The witness said ZJKT’s victims might also try to harm him but conceded this was speculative and not based on actual knowledge of the victim’s intent.
The witness said ZJKT was remorseful because at the time of his offending, he had just applied for permanent residency and had to ‘leave everything.’
Evidence of ZJKT’s brother-in-law

The witness adopted his statement dated 11 September 2020 as true and correct.[43] He is an Australia citizen and is related to ZJKT by his brother being married to ZJKT’s sister. The witness was asked to explain what he meant in his statement that ZJKT was involved in an ‘assault.’ The witness said ZJKT told him his male housemate was drunk and abusing everyone. A verbal argument subsequently developed into a physical confrontation and ZJKT went to the kitchen to get a knife, which he used to stab a ‘guy who was trying to stop him.’ The stabbing occurred after the person trying to stop the fight told ZJKT if he wanted to get to the other victim, he had to ‘go through me’ first.
[43] Exhibit A7.
Evidence of ZJKT’s friend
The witness adopted his statement dated 8 September 2020 as true and correct.[44] He is not an Australian citizen and resides in Australia on a temporary visa. He is a close friend of ZJKT’s from India, where they lived in the same neighbourhood and attended college together. The witness remembered making a statement to police after ZJKT’s arrest. He said ZJKT told him about being involved in a fight and acting in self-defence because it was ‘two against one.’ ZJKT had told the witness that the stabbing victim came from behind and attacked ZJKT’s neck. The witness also claimed the woman ZJKT was having an affair with had deceived her husband by having an affair with ZJKT and the stabbing victim, which was a contributing factor to ZJKT’s conduct.
[44] Exhibit A5.
The witness said he gave evidence at ZJKT’s trial but was not present during sentencing. When put to the witness that the sentencing judge found ZJKT’s attack was unprovoked, the witness said ZJKT had never lied to him and would know more about what had occurred than the judge. The witness thought ZJKT was remorseful. When asked what ZJKT was remorseful about, the witness said it related to the personal effect on ZJKT, his family and friends. He maintained contact with ZJKT by telephone and visited him in prison. He would not hesitate to continue supporting him, although if ZJKT was returned to India, they could not talk to each other as frequently because of the time difference and cost.
When asked about ZJKT’s caste claims, the witness said ZJKT was of the ‘Schedule Caste,’ while the witness was a higher caste. ZJKT had not told him that caste had any impact on him and it had not affected their relationship or opportunities in the past. He said caste issues in India were more prevalent in ‘lower educated people.’
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 11.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 11.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) are serious;
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e)    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered serious;
f)     …the sentence imposed by the courts for a crime or crimes;
g)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)    The cumulative effect of repeated offending;
i)   Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)   Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
The evidence discloses that ZJKT was law-abiding during his first five years in Australia, then committed violence that significantly changed the course of his life and the lives of others. The violence was directed towards a married couple he was living with and a close friend who was visiting the home. The couple’s infant child was present in the home. The sentencing judge referred to the ‘horrific’ consequences for one victim, who ZJKT stabbed nine times on two separate occasions.[45] After initially stabbing the victim, the sentencing remarks state that ZJKT returned, told the victim ‘you deserve to die,’ and stabbed him again.[46]
[45] Exhibit R1, 34 [20].
[46] Ibid, 35 [22].
ZJKT continues to dispute several of the Court’s findings,[47] including how many times he stabbed one victim and that his attack was unprovoked. The Court referred to the stabbing victim being unconscious and requiring ventilator support on arrival at hospital. He underwent multiple operations, which disclosed the extensive damage caused by the knife wounds. He spent a significant time in intensive care, and almost died. The attack was described as ‘savage…brutal… prolonged, vicious.’[48] After recovering, the victim told the Court he still suffered physical and psychological symptoms, could no longer play sports, and was forced to cease employment and studies in Australia. A second attack committed by ZJKT against one of his housemates was also unprovoked but less serious. It involved physical violence against an unarmed man, while the victim’s wife and young child were present. The Court found this attack was ‘premediated’ in nature.[49]
[47] ASFIC, 6.
[48] Exhibit R1, 37 [32].
[49] Ibid, 37 [32].
In addition to ZJKT’s convictions, the Tribunal notes an interim IVO was taken out against him in late 2018 while he was imprisoned. The Court issued a final IVO in January 2019.[50] The IVO application was made by a female prison staff member, who stated:
‘I am a prison officer…The respondent is currently an inmate. For the past six months [ZJKT] has been constantly seeking my personal details, trying to contact me and expressing his affection towards me. Two weeks ago after being directed by prison authorities not to make contact with me, he approached me twice within 24 hours. He positioned himself so as to make contact with me. He sent me a 6 page letter where he outlined his desire to have a relationship with me once he is released, with no regard to my current marital status. Following this incident he was placed in a management cell and transferred to another prison 4 days later. Numerous reports have been made to prison authorities. He is being released in mid December and has stated he will try and make contact with me. I seek an order so that he cannot contact me.’[51]
[50] Ibid, 45–50.
[51] Ibid, 42.
Under the terms of the IVO issued by the Magistrates’ Court to protect the prison officer and her daughter, ZJKT was not permitted to:
(a)Stalk the protected persons;
(b)Commit prohibited behaviour towards the protected persons;
(c)Attempt to locate, follow or keep the protected persons under surveillance;
(d)Publish any material about the protected persons;
(e)Contact or communicate with the protected persons by any means;
(f)Approach or remain within 5 metres of the protected persons;
(g)Go to or remain within 200 metres of any address or any other place where a protected person lives, works or attends school / childcare; or
(h)Get another person to do anything ZJKT must not do under the Order.
The Tribunal has considered the Respondent’s written submissions about the nature and seriousness of ZJKT’s offending.[52]
[52] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 28 September 2020, 5–7 [27]–[29].
Tribunal findings: The nature and seriousness of the conduct
ZJKT’s premeditated and violent offending, coupled with the life-threatening and life-changing nature of the harm he caused, is extremely serious. The seven-year sentence of imprisonment imposed by the Court for ‘Intentionally cause serious injury’ is less than the allowable 20 year maximum for this offence,[53] but nevertheless reflects the objective seriousness of ZJKT’s crimes. One of ZJKT’s victims was a woman who experienced significant fear for herself and her child during ZJKT’s offending. Consistent with the Court’s findings, the Tribunal finds that ZJKT’s conduct is ‘extremely serious.’[54]
[53] Crimes Act 1958 (Vic), s 16.
[54] Exhibit R1, 37 [32].
Although the IVO taken out against ZJKT while he was imprisoned did not result in a conviction, the Tribunal nevertheless considers his unwanted pursuit of a female prison staff member to be serious. Contrary to ZJKT’s claims that he did nothing wrong and the woman had no reason to fear him, the Court’s decision to issue an interim and final IVO demonstrates that the female staff member reasonably apprehended a risk to her safety.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)        The nature of the harm to individuals or the Australian        community should the non-citizen engage in further criminal      or other serious conduct; and
b)        The likelihood of the non-citizen engaging in further criminal          or other serious conduct, taking into account:
i.          information and evidence from independent and    authoritative sources on the likelihood of the non-citizen re-  offending; and
ii.         evidence of any rehabilitation achieved by the time of         the decision, giving weight to time spent in the      community since their most recent offence (noting that            decisions should not be delayed in order for rehabilitative               courses to be undertaken); and
iii.        the duration of the intended stay in Australia.

(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
This aspect of the Direction requires the Tribunal to assess the risk ZJKT poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability.
In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk that he might in the future engage in it.’
In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, Mortimer J considered at [154] the purpose of assessing an applicant’s risk of reoffending:
…an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using “protection” in its broadest sense.
In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on the Tribunal’s task regarding risk of recidivism in the following terms:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community,… being at least one measure …of how serious the risk was, or whether the risk should be “tolerated.”
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111]:[55]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(citations omitted)
[55] Cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at [42]–[43].
During sentencing, ZJKT’s crimes were held to be ‘quite inexplicable,’ because he was not affected by alcohol or illicit drugs.[56] Her Honour referred to a psychologist’s conclusion that ZJKT was not suffering any psychiatric or psychological disturbance, and no thought disturbance or perceptual disorder.[57] The only reason put forward by ZJKT was that he ‘got angry,’ which the Court found ‘hard to understand’ and a ‘far from normal or rational explanation’ for the state of anger evident during his offending.[58] The Court held that anger as an explanation did ‘nothing to reduce the criminality involved.’[59]
[56] Exhibit R1, 35 [21].
[57] Ibid.
[58] Ibid.
[59] Ibid [22]
ZJKT stated in his Personal Circumstances Form dated 7 June 2020 (2020 PCF) that he was ‘found unsuitable for a violence program,’ but had completed ‘a lot of studies’ for which certificates were provided.[60] The Tribunal notes a reference in a prison record dated 15 February 2016, which states he was found ‘unsuitable for the violence course.’[61] Another record dated 2017 stated: ‘He was found unsuitable for programs following his OBP assessment.’[62] It is unclear from the information provided, however, whether the report writers were recording ZJKT’s claims about this issue or another source for this information that is not disclosed in these records. By way of contrast, a record dated 8 November 2017 stated: ZJKT ‘doesn’t want to do any education or programs as he has completed a lot and wants to focus on his appeal and parole.’[63] Similar notes are made in records dated 21 January 2018.[64] ZJKT’s oral evidence was that he was offered group counselling sessions relevant to his offending but elected not to participate, and his request for one-on-one counselling could not be accommodated.
[60] Ibid, 137.
[61] Ibid, 263.
[62] Ibid, 267.
[63] Ibid, 273.
[64] Ibid, 275.
In the ASFIC, ZJKT stated he had ‘gone through rehabilitation (sic) and overturned his life and came out as a changed person.’[65] The Tribunal acknowledges several certificates in evidence relating to his completion of vocational units between 2013 and 2016 in computing, kitchen operations, commercial cookery, horticulture, painting and decorating, warehousing operations, responsible service of alcohol, and preparing a simple budget.[66] The Tribunal also acknowledges his completion of a six-week ‘Change on the Inside’ program in 2014 conducted by Prison Fellowship Australia, focussed on being able to ‘accomplish the right goals at the right time.’[67]
[65] ASFIC, 4 [6]
[66] Exhibit R1, 102–117.
[67] Ibid, 115.
While expressing remorse for his crimes in some of his written and oral evidence, ZJKT stated in his oral evidence and the ASFIC that ‘There are so many flaws in the comments coming from victims, immigration delegate and sentencing judge.’[68] In a statement dated 5 May 2020 he claimed that the stabbing victim at one stage grabbed him in a headlock with his ‘powerful arms,’ which inhibited ZJKT’s breathing, stopped his ‘blood circulation,’ and made him feel dizzy.[69] He made similar claims in a VISAT assessment.[70] It is clear from the evidence of his witnesses that they believe he was acting in self-defence or was otherwise provoked into violent conduct. These claims are in stark contrast to the victim’s statement to police that he grabbed ZJKT ‘from his waist’ in an effort to stop him assaulting another victim.[71] The sentencing remarks make clear ZJKT’s violent conduct was unprovoked.[72] ZJKT also disputed several other of the Court’s findings. In a statement dated 25 March 2019 he claimed that he did not deceive anyone by having an affair with his housemate’s wife, was intoxicated on the night of his offending, his ‘mental condition wasn’t alright,’ he never told the stabbing victim that he deserved to die, he had a ‘language barrier,’ and ‘didn’t defend [him]self at all at Court.’
[68] ASFIC, 3 [5].
[69] Exhibit R1, 84.
[70] Ibid, 218.
[71] Ibid, 438.
[72] Ibid, 32 [8].
An assessment conducted by Corrections staff using the Victorian Intervention Screening and Assessment Tool (VISAT) [73] noted that ZJKT ‘appeared to understand the impact his offences had’ on the most seriously injured victim, but he ‘did not care’ about the other victim, stating ‘what goes around comes around.’[74] The assessor stated there were no sentencing remarks available and the information provided was ZJKT’s ‘account only.’ The VISAT assessor noted ZJKT had responded ‘No’ when asked if he had ever taken part in a treatment program for violent behaviour.[75] The record goes on to state:
‘He reported that he has never participated in a treatment program for violent behaviour. He stated that he feels he needs to complete an anger management course to address his anger issues, however, stated that he does not want to participate in group sessions, as he does not feel comfortable discussing his personal situation with other prisoners. It is recommended that [ZJKT] be referred to Offending Behaviour Programs for further assessment. [76]
[73] Ibid, 217–232.
[74] Ibid, 230.
[75] Ibid, 221.
[76] Ibid, 222.
Although the VISAT assessor considered ZJKT’s general risk of reoffending was ‘Low,’ a risk override was supported to a ‘Moderate’ level of risk because:
‘[ZJKT] reported that he is unable to control his anger and struggles to accept when other individuals do wrong in the community. It is therefore recommended that [ZJKT] receive more intensive violence programs to address his behaviour and reduce his risk of reoffending.’[77]
[77] Ibid, 231.
In a statement dated 5 May 2020, ZJKT referred to suffering depression since 2008 as a result of ‘being lonely, part time employment, studies, my life style, friends and family’s etc.’[78] He claimed that he cooked, cleaned and shopped for his housemates, and was suffering ‘a lot of pressure mentally but nobody cared.’ He claimed others exploited him for their benefit by taking advantage of his good nature and inability to say no.[79] In his 2020 PCF, ZJKT contextualised his offending as arising from an ‘extraordinary situation’ where it was difficult for him ‘to take right decisions’ and he could not ‘find anyone for proper guidance.’[80] He said the ‘main key factor’ contextualising his offending was financial issues and an ‘intense relationship,’ namely an extra-marital relationship with the wife of his housemate [81] He expressed remorse for his offending and stated he had changed himself ‘from top to bottom.’[82] He explained that through conversion to Christianity, he had ‘found a connection with god and decided to follow his guidance.’[83] No corroborating evidence was provided from the person ZJKT said had facilitated his Christian conversion. ZJKT also submitted he had been a compliant prisoner and detainee, with no incidents recorded.
[78] Ibid, 81.
[79] Ibid.
[80] Ibid, 137.
[81] Ibid.
[82] Ibid, 85.
[83] Ibid.

The Tribunal has considered the IHMS medical records provided by ZJKT. These include health complaints like headaches, colds, stiff neck, ear wax, and general aches and pains from participation in physical activities. There are also notes from several mental health consultations. One entry dated 22 May 2019 recorded ZJKT stating his mental health is ‘beginning to suffer because of his detention,’ and he ‘feels that he will lash out because of the circumstances he is experiencing.’ This appears related to unspecified conflict with his roommate. A risk assessment within that record stated that ZJKT was a ‘Low/Moderate’ risk of harm to others, but the basis of that assessment is not specified. A yearly mental health screening on 22 November 2019 recorded that ZJKT had no mental health concerns but referred to suffering ‘depression at one point in his life,’ which he attributed to ‘financial crisis at the time,’ but had not sought mental health assistance. The unidentified author of the report assessed ZJKT as being a ‘low’ risk of self-harm, or harm to others, and of being harmed by others. The basis of that assessment or whether it referred to risks in a detention environment or otherwise, is not specified. A mental health consultation on 1 July 2020 referred to ZJKT ‘feeling very stressed’ and a record dated 27 August 2020 reported his mood as ‘5/10’ because of ‘threats’ and being moved to a protected environment, although he claimed not to have ‘experienced depressive symptoms for a while now.’
The Tribunal has had regard for Ms Jackson’s written[84] and oral submissions regarding risk. Relying on cl 6.3(4) of the Direction, she submitted that the potential harm caused by a repeat of ZJKT’s offending was so significant that even a low risk was unacceptable. In her closing submissions, Ms Jackson contended that the Tribunal should have no confidence that ZJKT’s anger and violence would not re-emerge. In relation to the job offer made to ZJKT if released, Ms Jackson said he was employed at the time of his previous offending, which did not have a preventative effect. Ms Jackson referred to insufficient evidence of ZJKT having undertaken clinical rehabilitation or programs linked to his anger and violent conduct, and that the VISAT assessment of a ‘moderate’ risk of reoffending holds true today. Ms Jackson also pointed to ZJKT’s attitude to his offending and tendency to minimise his involvement by claiming self-defence, as demonstrating a lack of insight and remorse.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[84] RSFIC, [31]–[33].
If ZJKT were to commit similar offences, serious physical and psychological harm, or death may result for victims of such offending. The Tribunal accepts that ZJKT has exhibited some remorse, although the focus of his remorse is predominantly on the personal consequences of prolonged custody and lost opportunities in Australia. Some of ZJKT’s comments, and those of his witnesses during the hearing, give rise to concerns about the extent to which he fully accepts responsibility for his actions. The witnesses erroneously believe ZJKT acted in self-defence or was provoked by his victims into violent conduct. His assertions about being affected by blood loss to the brain as the result of a headlock by the stabbing victim, were uncorroborated and are not accepted.
ZJKT continues to question the fairness of his trial, the sentence imposed, and key findings of the Court without corroboration. The Tribunal places greater weight on the sentencing remarks over his assertions. There is no evidence that any language issues impeded the conduct of a fair trial. ZJKT’s dismissal of the sentencing judge’s concern about the potential for reoffending as a ‘misconception,’ is not accepted. The Tribunal also does not accept his claims that he did not stab one of the victims nine times, or that immaturity, alcohol, and mental instability explain his conduct. The Tribunal also does not accept that his female victim manipulated and brain-washed him while they were having an affair. It is clear from the evidence that she was a victim of ZJKT’s offending who understandably feared for her safety and that of her infant child during ZJKT’s violent conduct.
ZJKT’s continuing lack of insight and self-awareness is further disclosed through the incidents involving a female prison staff member, who took out an IVO out against him. ZJKT claimed to have been led on and manipulated by the female staff member, which somehow justified his persistent contact. On the evidence before the Tribunal, that contact was unwanted, unwarranted, and the female officer reasonably apprehended a risk to her safety. ZJKT not only attempted to blame the female staff member, but the age and gender of people Corrections Victoria hired to work in prisons. He inexplicably considers his handling of the situation with the female prison officer was appropriate and a ‘big achievement’ demonstrating how far he has progressed since his offending. The Tribunal disagrees and places more weight on the Court’s decision to issue interim and final IVOs to protect the female prison staff member and her family. The totality of ZJKT’s evidence gives rise to concerns about blame-shifting on victims and highlights that his insight, remorse and rehabilitation is incomplete at best.
The Tribunal accepts ZJKT has undertaken certain vocational and rehabilitative courses while imprisoned. These have broadened his skillset and enhanced his capacity to seek employment on release. His claims about Christian conversion and regular attendance at Mass while imprisoned are absent any corroboration. ZJKT did not raise this issue during his oral evidence and the Tribunal does not consider it a persuasive protective factor diminishing his future risk of reoffending.
The Tribunal remains concerned by Her Honour’s conclusion during sentencing, that ‘given the right constellation of factors’ ZJKT’s anger and rage may ‘flare again’ resulting in the same outcomes.[85] He has not undertaken any anger management courses while imprisoned and the reasons for his rejection of a group counselling opportunity is unpersuasive at best. There is no reliable basis to conclude that his unexplained loss of control and resort to extremely serious violence in the past has been effectively addressed. That is particularly so given the observations in the VISAT assessment that he is unable to control his anger, and the recommendation that he should undertake ‘intensive violence programs to address his behaviour and reduce his risk of reoffending.’[86]
[85] Ibid, 39 [39].
[86] Ibid, 231.
ZJKTs circumstances remain relatively unchanged from the past, when he attributed his offending to factors like loneliness, financial pressure, uncertain immigration circumstances, and manipulation by others. If released on a Bridging Visa he has even fewer people to rely on for support, given his close friend and two housemates were the victims of his violent offending in 2011. Notwithstanding the job offer he has received as a retail salesperson or delivery driver, ZJKT’s accommodation prospects remain uncertain and there is no evidence to corroborate his claim that he has been offered stable accommodation. He also remains confronted by unresolved and precarious immigration circumstances and has very limited family support in Australia or financial support from his ageing parents in India. In such circumstances, the Tribunal is unconvinced that the constellation of factors envisaged by Her Honour during sentencing may not reoccur.
Notwithstanding the limited purpose of a Bridging Visa, the potential harm caused by any repeat of ZJKT’s violent offending is so serious that any likelihood is unacceptable. The Tribunal finds that ZJKT constitutes a real and unacceptable risk of reoffending. This primary consideration weighs very substantially in favour of visa refusal.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 11.2 of the Direction requires that the Tribunal must determine whether visa refusal is, or is not, in the best interests of children. ZJKT has no biological children and made no claims that the interests of minor children were relevant in this matter.[87]
[87] Ibid, 132–135.
Tribunal findings: Best interests of minor children in Australia
The Tribunal finds this consideration carries neutral weight.
Tribunal consideration: Expectations of the Australian community
Paragraph 11.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court (FCAFC) dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although FYBR referred to the previous Direction 65, the clause was in identical wording to the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[88] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[89] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “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.”
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
[88] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[89] FYBR at [104] per Stewart J.
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[90] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That said, use of terms like ‘should generally’ convey discretion, and assessments turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations,’ which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[91]
[90] FYBR at [75]–[76] per Charlesworth J.
[91] FYBR at [76] per Charlesworth J.
The Tribunal notes the High Court has handed down a decision in respect of an application for special leave to appeal against FYBR.[92] In refusing the application, the High Court held at lines [301]–[302], that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’
[92]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056.
The Tribunal notes her Honour’s comments about community expectations while sentencing ZJKT:
‘The community, rightly, abhors violence of this level occurring as a result of someone’s anger, our society is constructed on the basis of people maintaining self control and respecting the laws and mores that govern our society. A loss of temper, for whatever reason cannot excuse or mitigate in any way the seriousness of offending of this nature, particularly when there is no real explanation for the loss of temper or the display of anger.’[93]
[93] Exhibit R1, 35 [23].
ZJKT submitted that he has paid his debt to society by serving his sentence and deserves an opportunity to return to the community.[94]
[94] Ibid, 140.
Ms Jackson submitted that having regard to the serious risk of violent harm that would be inflicted if ZJKT reoffended, the Australian community would have low tolerance for this conduct. Consistent with the principles in the Direction, she said this consideration weighs heavily against ZJKT.
Tribunal findings: Expectations of the Australian community
ZJKT has spent approximately five years in Australia studying and working, followed by almost nine years either imprisoned or in immigration detention. The Australian community expects that those holding a limited stay visa will obey the law, and has a low tolerance for any criminal offending, particularly violent offending. The community expects such persons should have no expectation of being allowed to remain in Australia: cl 11.1.2(2) of the Direction. To paraphrase Stewart J in FYBR, the seriousness of ZJKT’s crimes border on decisive and this primary consideration weighs very substantially against granting the visa.
OTHER CONSIDERATIONS
Neither party submitted that Impact on victims, or Impact on Australian business interests were relevant in this matter.
The Tribunal has considered the available evidence and notes ZJKT’s work history prior to arrest in 2011 and the job offer he recently received from a friend as a shop assistant or delivery driver. There is no evidence that any work performed by ZJKT in the past or the job offer upon release, are sufficient to overcome the presumption that weight is generally given where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia. This consideration is given neutral weight.
There is no evidence from the victims of ZJKT’s offending about the consequences of an exercise of discretion to grant the visa.[95] The Tribunal gives the consideration Impact on victims neutral weight.
[95] HVLC v Minister for Home Affairs [2019] FCA 616, 13 (Colvin J). Justice Perram has recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
Tribunal consideration: International non-refoulement obligations
Paragraph 12.1 of the Direction provides:
(1)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 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.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. 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.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(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.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed in the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [103] ‘the term “non-refoulement obligations” …is not confined to the protection obligations to which s 36(2) refers’.
In determining whether non-refoulement obligations are engaged, a decision-maker must consider whether there is a real risk or a real chance of the claimed harm occurring,[96] and give active intellectual consideration to any clearly articulated representations regardless of characterisation.[97] The Tribunal’s engagement with such claims, however, relates to the question of whether to exercise the discretion under s 501(1) of the Act, rather than the more expansive analysis routinely undertaken for Protection Visa applications.[98]
[96] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246]–[247].
[97] Ali v Minister for Home Affairs [2020] FCAFC 109; Minister for Home Affairs v Omar [2019] 373 ALR 569, [34]–[44].
[98] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]–[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
ZJKT was reluctant to answer questions about his non-refoulement claims and attempted to invoke client legal privilege because his Protection Visa appeal was yet to be heard by the Federal Court. His evidence in the present matter largely repeated the claims made in his Protection Visa application. He stated that he fears revenge attacks from the victims of his offending in Australia, and mistreatment from Indian authorities as a returnee. His claims in respect of each are addressed in turn:
(a)Reprisal attacks. ZJKT believes that the victims of his 2011 crimes, or their associates in India, may carry out revenge or reprisal attacks.[99] He claimed an inability to defend himself because he was ‘physically…very weak now.’ He agreed that his victims had not threatened him personally. ZJKT claimed to have heard from mutual friends that the stabbing victim lived in Canada with his wife and two children. He claimed the marriage between the other two other victims ended, and a fellow prisoner told him in ‘2014-2015’ that the husband was deported to India. ZJKT claimed in his written evidence that a ‘close friend’ informed him the female victim started a new relationship after her marriage ended and was living in Australia. At the hearing, he said she told him this herself a year or so ago. Although ZJKT claimed to have ‘heard so many things from time to time from random people’ about his victim’s intentions, no corroborating evidence was provided from the informants.
[99] Exhibit R1, 139.
(b)ZJKT claimed that in 2012 his father received ‘a phone call from an anonymous person’ who threatened to kill ZJKT as soon as he was released from prison.[100] At this hearing, however, he claimed there had been two telephone calls and although he could not ‘put a finger on any person at the moment,’ said the calls ‘definitely related’ to his victims. ZJKT agreed his family had not been harmed since his imprisonment in late 2011 and was unaware of any further anonymous telephone calls to his father since 2012. ZJKT said his sister had also received a message in 2018 but was unwilling to disclose the contents. He claimed that his sister told him the person who sent it was ZJKT’s stabbing victim. There was no statement from ZJKT’s parents or sister to corroborate these claims.
[100] Ibid, 548.
(c)ZJKT said it was his affair with the female victim of his offending that caused her marriage to end, which may motivate her former husband to harm him. He claimed that his victims know where his parent’s home is, and his repatriation may therefore put his family’s safety at risk. In a statement dated 25 March 2019 ZJKT submitted that men can be the subject of ‘honour killings’ in India, and any of his three victims, or an ‘anonymous person’ could harm him.
(d)ZJKT provided the Tribunal with photocopied extracts of purported social media messages between himself and the stabbing victim. He agreed the extracts were not a complete record of their exchange. These stated:
Victim: ‘Have you settled Down cunt? You are such a pussy man. Can’t confront a man you stabbed...’
ZJKT: ‘You provoked me before and you’re doing it again. I have no problem with you anymore, Using indecent lingo and contacting my loved once isn’t right. Leave them alone.. I have paid my debt to the community by serving 7 years of my life in custody… It all over from my side now..I have nothing to do with my past anymore...please stop contacting my friends and family. That’s unfair. Contacting my siblings (family) was unacceptable, You don’t know them…they are strangers to you… then you are saying that you want to tell them what I’ve done in my life…it’s a direct threat to them, which doesn’t sit well with me. As far as [another victim’s] concern, I didn’t contact her directly as you probably know this, That was her choice to give me a call. I apologised to her and talked to her in a decent manner..and since than I’ve never expected anything from her and look I wanna move on.’
Victim: ‘Any so called your family guys, none of them answered my call coz deep inside they know you had fucked up. They wouldn’t have any answer to questions and cowardly act you done. They are hiding their face. They don’t consider you as their friend. Out of those 7 years they visited you not more than twice. Keep lying to yourself. You are alone as fuck.’
ZJKT: ‘You can say whatever you like..I have nothing to say anymore..’
When it was put to ZJKT that the screenshots did not contain a threat, he disagreed, stating that any intention to contact his family was a threat.
(e)ZJKT claimed that the risks confronting him in India are accentuated by his caste. He claimed to have first discovered his caste at the age of 28 and agreed he first made protection claims about caste in a 2017 letter to the Tribunal following the refusal of his Protection Visa. That letter stated:
‘I didn’t disclose before, but I want to share this with you that there is caste-system in India which is still bad and people get treated according to their caste, which put me and my family in vulnerable situation, because I belong to certain caste and its different then my victims. It could lead to massive trouble.
I think caste system is pretty much similar to race…’[101]
(f)Mistreatment by Indian authorities. ZJKT said he feared ‘harassment’ from Indian police, claiming they would question him about his criminal past if returned. He said this would be humiliating and in his written evidence stated: ‘I don’t think authorities of India can or will protect me, specially when I am the one who got convicted for crime.’[102] ZJKT has previously elaborated on this issue in his Protection Visa application, in which he stated:
‘They won’t accept “NO COMMENT” statement. I know I will be humiliated and they won’t let me free unless I tell them everything. And they will share this information with local area police where I would live and they would question me or my family if anything happen in my area.
They will track me using these information and harass me because of my previous convictions. It’s very common in country like India because of corrupted system. I could face fake charges and physically beaten up to accept these charges, which I never commit.’[103]
[101] Ibid, 625.
[102] Ibid, 551.
[103] Ibid, 552.

ZJKT said he was unable to relocate to other parts of India due to the absence of financial support from his family, who he was dependant on prior to arriving in Australia in 2006.[104] He claimed his father is a pensioner who is unable to support him financially any longer. ZJKT stated: ‘I don’t wanna hide anywhere from anyone but same time, I cannot put my family’s safety on the line.’[105] In a statement dated 25 March 2019, he stated:
‘I never asked anything from my parents since 2012, not even a single thing, I have my own life and I wanna live my life on my own, being independent is a great feeling.’
[104] Ibid, 139
[105] Ibid, 551.
ZJKT said that his family moved frequently because of his father’s Army career and did not return to the Punjab until 1999. Consequently, he claimed that he never learned to speak Punjabi and would be disadvantaged if living there. He previously ‘had to accept’ living in the Punjab because he was dependant on his father,[106] but described his life there as a ‘kind of massive disaster,’ which caused him to seek a new life in Australia.[107]
[106] Ibid, 208.
[107] Ibid, 547.
The Tribunal has considered the Country Information Report for India by Australia’s Department of Foreign Affairs, Defence and Trade (DFAT) dated 17 October 2018.[108] DFAT states that India is a ‘diverse, multi-ethnic and multi-lingual’ country of approximately 1.21 billion people.[109] Hindi is the most commonly spoken language (41 per cent of the total population), and ‘an estimated 125 million people speak English as either a first, second or third language.’[110] The report states that ‘India has effective constitutional protections against official discrimination on the basis of ethnicity and language’,[111] and ‘…inter-faith and inter-caste marriages are legal.’[112] In relation to returnees, DFAT states it:
‘is not aware of any evidence of mistreatment of returnees…India does not have a centralised registration system in place to enable police to check the whereabouts of inhabitants in their own state, let alone in other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrival of removals from Australia but does not track returnees after their arrival in India. A February 21015 report by the UK Home Office considered it unlikely the police, or any person or body would be able to locate a person who had fled to another state or territory.’[113]
[108] Ibid, 681–710.
[109] Ibid, 687.
[110] Ibid.
[111] Ibid, 694.
[112] Ibid, 699.
[113] Ibid, 709.
When given a final opportunity to state any other sources of potential harm he feared in India, ZJKT said he was unwilling to talk about his non-refoulement claims any further.
Tribunal findings: International non-refoulement obligations
In terms of the legal implications of an adverse decision in this matter, the refusal of ZJKT’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. If the discretion is not exercised in his favour, he will continue to be detained under s 189 of the Act and is liable for removal as soon as reasonably practicable: ss 197C and 198 of the Act. ZJKT has previously made a Protection Visa application, which was refused by a delegate of the Respondent on 9 June 2017.[114] The Tribunal (differently constituted) affirmed that decision on 12 April 2019.[115] ZJKT appealed that decision to the Federal Circuit Court, which was dismissed on 15 May 2020. He has since appealed to the Federal Court of Australia, which is scheduled to hear his appeal later in October 2020. While the results of this appeal cannot be speculated upon, the Tribunal notes that when considering an application for a Protection Visa, the Minister’s Department must first assess whether refugee and complementary protection criteria are met before considering ineligibility criteria: Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b). The Tribunal also notes that in the event of an adverse decision in the present matter, ZJKT is barred from lodging a further application for a Protection Visa: s 48A of the Act.
[114] Ibid, 602–612.
[115] Ibid, 652–672.
The mere fact that a person claims fear of persecution does not establish either the genuineness of the asserted fear, or that it is ‘well-founded,’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish such a risk exists, or that the feared harm amounts to ‘significant harm’. An applicant is required to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. It is not for the Tribunal to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to uncritically accept the allegations made by an applicant.[116]
[116] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–70.
The Tribunal found ZJKT’s claims about potential harm in India to be variously general, vague, speculative, evasive, and lacking credibility. He attributed a revengeful intent on his three victims, which was largely based on uncorroborated assertion. He does not know with certainty where any victim lives. There is no persuasive evidence that any of the victims have ever threatened ZJKT or his family. The highest his evidence gets is a general fear of reprisal based on two anonymous telephone calls to his father eight years ago, two anonymous messages on social media over eight years ago, a purported exchange of unpleasant text messages with one victim over a year ago, and a message to his sister, who refuses to disclose the contents. The Tribunal places no weight on anonymous messages and there is no evidence from ZJKT’s father or sister to corroborate his claims. Even if such contact had occurred, it does not constitute a plausible or objective fear of harm or persecution.
The Tribunal notes that a police statement taken from the stabbing victim in early 2012 discloses it is he who fears what ZJKT might do to him and the other victims and their families if released from custody.[117] Moreover, in previous evidence to the Tribunal, ZJKT said his three victims had taken IVOs out against him when he sent them letters of apology in 2012.[118] It is considered improbable that the three victims, who to this point have either expressed their fear of ZJKT to police, have avoided responding to his letters, and have sought protection after he attempted to contact them, constitute the threat he claims. There is also no evidence they have incited others to harm him or his family. ZJKT’s evidence is that he believes the stabbing victim lives in Canada, another lives in Australia, and the third has returned to India. There is no evidence of any communication from either victim purportedly in India and Australia, and the purported communication from the stabbing victim does not constitute a threat in the Tribunal’s view. Given the passage of time since his offending in 2011, and the absence of any plausible threat of harm to ZJKT or his family during the last nine years, the Tribunal concludes that ZJKT does not have an objective basis for his claimed fear of harm.
[117] Ibid, 444.
[118] Ibid, 59 [36].
ZJKT’s references to threats arising from inequality of caste were uncorroborated. He provided no supporting evidence about caste issues to clarify why he envisages a risk on this basis. The Tribunal also found ZJKT’s evidence about only discovering his caste well into adulthood at the age of 28 to be unpersuasive at best. It is noteworthy that ZJKT lived in the same home as the victims he now claims are of a superior caste and therefore pose a threat. It is also noteworthy that caste does not seem to have previously played an important role in ZJKT’s ability to receive an education to tertiary level in India, to travel, work overseas, or form lifelong friendships with people of a higher caste. One of his witnesses said that issues of caste resonated most prominently amongst the less well educated. There is no evidence ZJKT has previously been denied any opportunity in India based on caste. The Tribunal does not accept his evidence that he may be subject to a revenge or ‘honour’ killing because of an affair with a higher caste woman in Australia, which is more likely to constitute a threat to women according to DFAT’s assessment. The totality of ZJKT’s evidence about a threat based on caste came across as general, self-serving and unpersuasive.
ZJKT’s claims about fearing harm from Indian authorities are based on the belief that police will question him about his criminal history in Australia. He does not claim they would physically harm or persecute him. ZJKT stated in his oral evidence that he had no previous interaction with Indian police prior to travel to Australia, and to the Tribunal’s knowledge, is not wanted for any crimes in India. While it can be accepted he might be detained and questioned by Indian authorities if removed from Australia, the Tribunal is unpersuaded he will be mistreated or persecuted, or that police would pursue him or not protect him because of his criminal record, or that nowhere in India is safe for him to relocate to. Those claims are speculative and uncorroborated. ZJKT bases his fear of harm on what he has heard from others returned to India, but from whom there is no corroborating evidence. The DFAT country information does not support his claims about treatment of returnees or that police would continue to track and harass him.[119]
[119] Ibid, 709.
As for being able to live in other parts of India, ZJKT’s own evidence is that he lived mostly outside of the Punjab while growing up and was keen to leave the region after his parents retired there in 1999. His father’s frequent career-related relocations mean ZJKT is no stranger to re-establishing himself in new environments. He speaks Hindi, English, and has been educated to tertiary level in India. He previously worked while living in India and has since demonstrated the capacity to travel overseas and provide for himself away from family support. He has an established employment skillset that was enhanced by the additional vocational courses he completed while imprisoned. Although there are understandably practical impediments when a person re-establishes themselves after prolonged imprisonment, there appears no reason ZJKT could not do so in areas outside of the Punjab if he genuinely feared harm. There is also no persuasive evidence to support his claim that he would be reliant on his family’s support if returned or would suffer economic harm as a foreseeable consequence of repatriation.
ZJKT’s non-refoulement claims are largely based on uncorroborated assertion. He does not have a well-founded fear of persecution in India based on his race, religion, nationality, caste, or political opinion. His evidence about a risk of persecution by Indian authorities because of his criminal record in Australia is similarly vague and unpersuasive. The Tribunal finds he is not confronted by a real risk of significant harm from the three victims of his offending in Australia, or their associates, or members of higher castes to which his victims purportedly belong. On that basis, he does not currently need the protection of Indian authorities. The Tribunal finds there is no real chance he will be harassed, detained or otherwise harmed by Indian authorities or anyone else, now or in the reasonably foreseeable future. ZJKT did not claim, and there is no evidence to support him fearing harm on any other basis on return. ZJKT’s claims do not engage Australia’s non-refoulement obligations, and this consideration is given neutral weight.
Tribunal consideration: Impact on family members
Paragraph 12.2(1) of the Direction requires the Tribunal to consider:
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.
There is conflicting evidence in relation to this consideration. The Court noted during sentencing that in the year-and-a-half he spent on remand, ZJKT received visits from a single person. Her Honour stated that ZJKT’s time in custody would be ‘more difficult than the average prisoner,’ because he had no family support in Australia and ‘very few supporters or visitors.’[120] In the VISAT assessment it was recorded that ZJKT ‘reported he has approximately four friends in Australia, however stated that he has had no contact with them since coming to prison.’[121] That record is inconsistent with the oral evidence during the hearing, where a small group of witnesses stated they remain close to ZJKT and visited him in prison, albeit infrequently. They continue to support him through telephone calls and contact on social media.
[120] Ibid, 39 [37].
[121] Ibid, 227.
In his 2020 PCF, ZJKT stated that his father, mother, two sisters and multiple other relatives are Indian citizens and live in India.[122] He referred to one ‘cousin’ and another ‘relative’ who live in Australia.[123] The Tribunal heard oral evidence from ZJKT’s cousin and a brother-in-law at the hearing. His cousin is in Australia on a Student Visa and does not have a right to remain in Australia indefinitely. The unchallenged evidence of his brother-in-law is that he is an Australian citizen.
[122] Ibid, 136.
[123] Ibid.
Tribunal findings: Impact on family members
The Tribunal accepts that an adverse decision in this matter would be disappointing for ZJKT’s brother-in-law, who is the only family member captured within the meaning of the Direction. There is no evidence, however, that there is any practical, financial or other impact beyond an emotional effect. There is no evidence that ZJKT’s brother-in-law or others could not maintain contact with ZJKT by telephone as they currently do or visit him in India.
On balance, the Tribunal finds that ‘Impact on family members,’ weighs very slightly in favour of granting the visa.
Other Considerations
No additional considerations were advanced by ZJKT. The Tribunal accepts Ms Jackson’s submission, however, that his claims about medical issues and concerns about safety in immigration detention deserve further consideration.
Tribunal consideration: Medical issues
ZJKT stated in his 2020 PCF that he has no currently diagnosed medical or psychological conditions.[124] In his statement dated 5 May 2020, he referred to two suicide attempts by drinking ‘7 packets of bleach’ and trying to hang himself with ‘cable extensions’.[125] A VISAT assessment[126] recorded his claims about a previous diagnosis of depression and bipolar disorder, a suicide attempt by drinking bleach soon after being imprisoned and going on a 13-day hunger strike. More recent IHMS records noted his claims about ‘depression from 2007 to 2010,’[127] and two suicide attempts while imprisoned by drinking bleach and trying to hang himself with a sheet, during which he was ‘found by a guard.’[128] A later IHMS record noted ZJKT telling the interviewer about a: ‘past history of suicide thoughts, in 2012, I was in prison, no not never never since.’[129]
[124] Ibid, 138.
[125] Ibid, 84–85.
[126] Ibid, 229.
[127] Exhibit A3, 16 December 2018.
[128] Ibid, 20 January 2019.
[129] Ibid, 11 June 2020.
When asked about the inconsistencies in his claims about suicide attempts, ZJKT said he did not report either attempt, or otherwise come to the attention of prison authorities while making them. He claimed to suffer several lasting effects from the purported bleach consumption incident, including ‘weak joints, bone pains, breathing problems and messed up blood circulation on my right shoulder…because of those chemicals.’[130] Those claims are uncorroborated. The Tribunal notes a record dated January 2012, soon after ZJKT was imprisoned, where it stated he refused meals after claiming not to like prison food.[131] He similarly refused food for a period after being stood down from his role in the prison kitchen in late 2018 after the IVO-related incident with a female staff member.[132] There is no corroborating expert evidence, however, to confirm a previous mental health diagnosis, or any suicide attempts. Prison reports for August 2018 and surrounding months make no reference to suicidal ideation. ZJKT is instead reported as ‘going well,’ communicating with his family and friends, enjoying his work in the prison kitchen, and progressing his aspirations for parole and resolution of visa issues.[133]
[130] Exhibit R1, 85.
[131] Ibid, 233–234.
[132] Ibid, 285.
[133] Ibid, 279–284.
ZJKT referred to continuing orthopaedic problems and being on a waiting list to see a ‘bone doctor.’ The Tribunal notes the IHMS medical records refer to a left ankle injury he experienced while playing sport in December 2018, as well as reports of joint pains, headaches, and other relatively minor presentations. A more recent IHMS record dated 27 August 2020 stated: ‘Says he is in a good spot mental health wise: “I have not experienced depressive symptoms for a while now.”’ In relation to ZJKT’s claims about foot and ankle problems, the Tribunal notes several references in the IHMS records to an ‘injured foot,’ ‘left ankle’ and other joint and muscle pains following weightlifting and playing sports like soccer and tennis. One record dated 8 February 2019 stated:
‘complains of left ankle pain for several weeks
pain on mobilising and has stopped going to gym due to concerns would make it worse
not due to direct trauma but has been doing heavy lifting and weigtht exercises
has history of stress fracture in same foot metatarsal 2-3 ?
tender over distal tibial bone and dordal foot
no swelling
unlikely fx , most likey strained ligament however client is concerned having had low impact fracture in the past
Plan
Xray left foot and ankle
voltaren gel
can also have NSAID ie nurofen prn if needs it’
An IHMS record dated 1 July 2019 reported that the x-ray of ZJKT’s left ankle was normal, although he continued to report pain, for which he was referred to a physiotherapist. A record dated 11 August 2020 stated that ZJKT also reported right ankle pain after he ‘started running 3-4 weeks ago.’
Tribunal findings: Medical issues
The Tribunal accepts it is plausible that ZJKT suffered depressive symptoms after arriving in Australia due to separation from his family in India, loneliness and the challenges of balancing study and work in a new country. After being seen by a psychologist prior to sentencing, however, ZJKT was not found to be suffering any ‘psychiatric or psychological disturbance, no thought disturbance or perceptual disorder.[134]
[134] Ibid, 35.
ZJKT’s evidence about suicide attempts was inconsistent, uncorroborated and in the case of his claim about consuming seven packets of bleach, implausible. His oral evidence is that he has no diagnosed medical or psychological issues, is currently strong mentally, and aspires to an immediate return to work if released.
Notwithstanding the physical weakness ZJKT claims resulted from the purported bleach incident, he said this could be managed if he chose less labour-intensive work. Were ZJKT to experience an exacerbation of any physical injury or require mental health support, there is no evidence that any assistance he might need is not available to him in detention, or in the event he was returned to India, that he would be denied or could not access the medical assistance available to every other Indian citizen. No weight is placed on this consideration.
Tribunal consideration: Protective detention
The Tribunal has considered ZJKT’s submissions about being relocated to different accommodation within the detention centre in July 2020, which he said resulted from threats by other detainees. ZJKT said he was now escorted everywhere and does not have immediate access to facilities that are readily available to other detainees. He said this makes him feel ‘really uncomfortable.’ The Tribunal notes several references in the IHMS medical records to reports of ZJKT stating during mental health consultations that he was ‘not coping in current accommodation,’[135] had requested a compound change,[136] and a bottom bunk.[137] The Tribunal has considered a letter of complaint ZJKT submitted on 20 July 2020, soon after he was relocated, in which he stated:
‘On 20 July 2020 at 2:15pm ERT brought me and my friend [name deleted] here at [name deleted] compound. We both are flabbergasted about the decision coming from management which was unfair. We both didn’t ask for protection…there was nothing happened serious at the mess or at [name deleted]. I don’t know who called ERT.
We both feel safe going back to [name deleted] compound ASAP. This matter should be resolved quickly, because here isn’t going to help us mentally…Our immigration cases are our priority and we don’t wanna feel uncomfortable dealing with being locked up in protection.
Please arrange a meeting with higher authorities to discuss this matter further…’[138]
[135] Exhibit A3, 8 March 2019.
[136] Ibid, 21 March 2019.
[137] Ibid, 10 May 2019; 25 June 2019; 1 July 2019; 11 July 2019.
[138] Exhibit A9.

The Tribunal has considered several letters to ZJKT from Serco Australia dated

28 July 2020, 7 August 2020, 18 August 2020 and 28 August 2020. The latter stated:
‘As discussed during our conversation on Tuesday the 25^th of August 2020, we have advised accommodation options in alternative compounds would not be suitable due to concerns regarding your safety and well-being.’[139]
[139] Ibid.
Tribunal findings: Protective detention
ZJKT clearly disagrees with the decision to relocate him within the detention centre, which appears to have resulted from an unspecified incident. His concerns about the consequences of this decision were vague, general, and centred on a dislike of being escorted from place to place for his own safety. Any security concerns to his safety and wellbeing appear adequately ameliorated by the actions of detention centre authorities to relocate him to a more protected area and escort him. No weight is attributed to this consideration.
CONCLUSION
ZJKT does not pass the character test. In determining whether the discretion in s 501(1) of the Act to refuse his visa should be exercised, the primary and other considerations at Part B of the Direction have been applied to the specific circumstances of his case.
In considering the totality of the evidence, the Tribunal concludes there is no reason to depart from the guidance in the Direction that primary considerations should generally be given more weight than other considerations.
ZJKT’s premeditated and violent offending is extremely serious and has adversely changed the course of his own life and that of several victims. His more recent and unwanted pursuit of a female staff member while imprisoned is also concerning. Contrary to ZJKT’s claims, the Court’s decision to issue an interim and final IVO demonstrates that the female staff member reasonably apprehended a risk to her safety.
In terms of risk, the Tribunal remains unconvinced by ZJKT’s rehabilitative claims. Notwithstanding the passage of almost nine years since his offending, he is yet to fully come to terms with his conduct. On the evidence currently before the Tribunal, his insight and rehabilitative progress is incomplete at best. The Tribunal continues to share the sentencing judge’s concern that ‘given the right constellation of factors’ ZJKT’s anger and rage may ‘flare again’ resulting in the same outcomes.[140] The potential harm caused by any repeat of such violent offending is so serious that any likelihood is unacceptable. ZJKT constitutes a real and unacceptable risk of harm to members of the community.
[140] Ibid, 39 [39].
Although ZJKT spent approximately five law-abiding years in Australia studying and working, this was followed by extremely serious and violent offending, which resulted in him spending the following nine years either imprisoned or in immigration detention. The Australian community expects that those holding a limited stay visa will obey the law, and has a low tolerance for any criminal offending, particularly violent offending. The community expects such persons should have no expectation of being allowed to remain in Australia.
Of the other considerations that are relevant in this matter, ZJKT’s claims about potential harm in India were variously general, vague, speculative, evasive, or uncorroborated. His claims do not engage Australia’s non-refoulement obligations.
In terms of the impact on family members, ZJKT’s parents, siblings and most other relatives are Indian citizens who live in India. Only ZJKT’s brother-in-law is an Australian citizen. There is no evidence of any practical, financial or other impact on his brother-in-law beyond an emotional effect. There is also no evidence that ZJKT’s brother-in-law, cousin or other friends in Australia could not maintain contact with him by telephone, as they currently do, or visit him in India.
Two other considerations were considered: medical issues; and ZJKT’s concerns about protective detention. For the reasons adduced, no weight is placed on these.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds that the discretion to refuse the visa should be exercised. That is because the two relevant primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially in favour of visa refusal. These considerably outweigh the ‘Impact on family members,’ which weighs very slightly in favour of granting the visa.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 154 (one hundred and fifty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…[sgd]……………………………….
Associate
Dated: 15 October 2020

Dates of hearing: 8 and 9 October 2020

Applicant: By videoconference

Advocate for the Respondent: Ms Melinda Jackson

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 4125

15 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	8 and 9 October 2020
Applicant:	By videoconference
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor