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

Case [2020] AATA 4125

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

  1. 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.

Details
AGLC
ZJKT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4125
Case
[2020] AATA 4125
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by ZJKT, a citizen of India, against the refusal of his Bridging Visa application. ZJKT had been in Australia since late 2006, initially on a Student Visa, and had since been involved in serious criminal offending. Following his conviction for offences including "Intentionally cause serious injury," he served a significant portion of his prison sentence before being taken into immigration detention in late 2018. The refusal of his Bridging Visa was based on him failing to pass the character test under section 501 of the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal was required to determine whether to exercise the discretion to refuse the visa, considering the relevant ministerial directions and the specific circumstances of ZJKT's case.

The primary legal issue before the Tribunal was whether ZJKT met the character requirements for a visa, specifically whether he passed the character test as defined by the *Migration Act*. This involved assessing the seriousness of his offending conduct, the weight to be given to various primary and other considerations as outlined in the relevant ministerial direction, and ultimately, whether the discretion to refuse his visa should be exercised. The Tribunal also considered ZJKT's claims regarding potential harm in India and the impact on his limited family ties in Australia.

The Tribunal reasoned that ZJKT's offending, which involved premeditated and violent acts resulting in severe injury to one victim and lesser but still unprovoked violence against another, was extremely serious. It noted that the sentencing judge had expressed concern about ZJKT's potential for future violence. Despite ZJKT's claims of immaturity and difficulties adjusting to life in Australia, the Tribunal found his rehabilitative progress and insight into his conduct to be incomplete. The Tribunal applied the principle that primary considerations, such as the nature and seriousness of offending, should generally be given more weight than other considerations. It found that ZJKT posed a real and unacceptable risk of harm to the community, and that his claims regarding potential harm in India and the impact on his Australian family members were insufficient to outweigh the serious character concerns.

The Tribunal concluded that ZJKT did not pass the character test and that there was no reason to depart from the guidance that primary considerations should generally be given more weight. Consequently, the Tribunal affirmed the decision to refuse ZJKT's Bridging Visa application, finding that he constituted a real and unacceptable risk of harm to the Australian community.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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?

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].