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

ZKRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2648 (21 July 2020)
Division:GENERAL DIVISION
File Number: 2020/2516
Re:ZKRY
APPLICANT

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

Decision
Tribunal:Senior Member Linda Kirk
Date:21 July 2020
Date of written reasons: 3 August 2020
Place:Sydney

The Tribunal affirms the decision under review.
.......[sgd].................................................................
Senior Member Linda Kirk
Catchwords
MIGRATION – visa refusal – Bridging E (Class WE) visa – substantial criminal record – sexual and violent offences against a woman – where applicant has judicial review pending for Protection visa cancellation – whether the applicant will be released into the community or remain in immigration detention – moderate risk of re-offending – protection of the Australian community – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR and Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Minister for Home Affairs v Omar [2019] FCAFC 188
Re Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255

Secondary Materials
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
3 August 2020

ZKRY (‘the Applicant’), a citizen of Iraq, was born in 1981.[1] He first arrived in Australia on 9 September 2011 and lodged an application for a protection visa on 11 October 2011.[2] He was granted a Protection (Class XA) (subclass 866) visa (‘the Protection visa’) on 14 December 2012.[3]
[1] G5, 78; G10, 136.
[2] G4, 52.
[3] G4, 51.
On 16 April 2018, the Protection visa was cancelled by a delegate of the Minister (‘the Respondent’) under subsection 109(1) of the Migration Act 1958 (Cth) (‘the Act’) because the Applicant provided incorrect information in his protection visa application.[4]
[4] G4, 51-68.
On 19 April 2018, the Applicant lodged an application for review of this decision with the Migration and Refugee Division (‘MRD’) of the Administrative Appeals Tribunal (‘the Tribunal’).[5] He did not apply to be granted a bridging visa associated with this review application and thereby became an unlawful non-citizen in Australia.
[5] G8, 109.
On 5 December 2018, the Applicant was located at his home and detained under section 189 of the Act at Villawood Detention Centre.[6]
[6] G8, 109.
On 10 May 2019, the Tribunal affirmed the cancellation of the Applicant’s protection visa.[7]
[7] G5, 69-97.
On 14 June 2019, he commenced judicial review proceedings in the Federal Circuit Court.[8]
[8] G8, 109; SYGxxx3/2019.
On 11 September 2019, the Applicant applied for a Bridging E (Class WE) visa (‘the Bridging visa’) to permit his release back into the community pending the outcome of the decision on the reinstatement of his protection visa.[9] The visa application was refused by a delegate of the Minister on 12 September 2019.[10] The Applicant sought review of the decision with the MRD of the Tribunal. On 23 October 2019, the Tribunal remitted the matter for reconsideration with a direction that the Applicant meets the criteria for a Subclass 050 (Bridging)(General) visa.[11]
[9] G7, 100-107.
[10] G8, 109.
[11] G8, 108-129.
On 28 April 2020, a delegate of the Minister refused to grant the Applicant the Bridging visa under subsection 501(1) of the Act (‘the Reviewable Decision’). The delegate found that the Applicant does not pass the character test by virtue of subsections 501(6)(a) and 501(7)(c) of the Act and decided to exercise the discretion to refuse to grant the visa.[12]
[12] G2, 10-20.
On 29 April 2020, the Applicant lodged an application with the General Division of the Tribunal seeking a review of the Reviewable Decision.[13]
[13] G1, 1-6.
On 6 March 2020, the Applicant’s application to the Federal Circuit Court was dismissed. On 2 April 2020, the Applicant filed a notice of appeal to the Federal Court of Australia.[14] The Applicant is currently seeking review by the Federal Court of the Federal Circuit Court’s decision to dismiss his application for judicial review of the Tribunal’s decision to cancel his Protection visa. No hearing date has been set for the Federal Court hearing. If the Applicant is successful in this current review application before the Tribunal, then it is likely that he will be granted a Bridging visa and released from immigration detention. That Bridging visa is likely to remain until proceedings relating to his application for a Protection visa are ultimately determined. If he is unsuccessful in his current application before the Tribunal, he will remain an unlawful non-citizen and be required to remain detained pursuant to sections 189 and 196 of the Act. If he is ultimately successful in having the cancellation of his Protection visa set aside, he will be allowed to remain in Australia. If he is not ultimately successful in having his Protection visa reinstated, it is likely that he will be removed from Australia pursuant to section 198 of the Act.
[14] NSDxxx/2020.
The proceedings in this Tribunal will not determine whether the Applicant is allowed to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.
The review application was heard at a Tribunal hearing on 8 and 9 July 2020. The Applicant attended the hearing via videoconference from Villawood Detention Centre and was self-represented. He gave oral evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 19 June 2020;
·G-documents (G1 to G18, pages 1-196);
·Respondent’s Tender Bundle (TB1 – TB9, pages 1-300); and
·Material filed by the Applicant including:
oCharacter reference dated 11 May 2020 (Exhibit A2);
oForm 956 – advice by a registered migration agent;
oEmails;
oTraffic Offenders Intervention Program certificate of completion (Exhibit A1)
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(1) of the Act provides that:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (emphasis added)
The character test is defined in subsection 501(6) of the Act. It relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
If the Tribunal is satisfied that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under subsection 501(1) of the Act is not enlivened.
If however the Tribunal is not satisfied that the Applicant passes the character test, the discretion under subsection 501(1) of the Act is enlivened.
MINISTERIAL DIRECTION NO. 79
In considering whether to exercise the discretion in subsection 501(1) of the Act, the Tribunal is bound in accordance with subsection 499(2A) of the Act to comply with any directions made under the Act. Relevantly, subsection 499(1) of the Act provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) The performance of those functions; or
(b) The exercise of those powers
In this case, the relevant direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’). The Direction was issued on 20 December 2019 and applies on and from 28 February 2019. The Direction replaces Ministerial Direction No. 65.
Paragraph 6(2) of section 2 of Annex A to the Direction provides guidance on the application of the character test and assessment of risk in relation to the determination of an Applicant’s future conduct. Paragraph 6(2) provides that this ground is enlivened if:
… there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
Further to this, paragraph 6(3) of section 2 of Annex A to the Direction provides:
It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to refuse the grant of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
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.
The following Principles are set out in paragraph 6.3:
(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.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part B of the Direction provides more specific considerations in determining whether to refuse the grant of a visa. These include ‘primary considerations’ and ‘other considerations’.
The primary considerations are set out in paragraph 11(1) of the Direction:
(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.
The other considerations which must be taken into account, where relevant, are set out in paragraph 12(1) of the Direction:
(a)international non-refoulement obligations;
(b)impact on family members;
(c)impact on victims; and
(d)impact on Australian business interests.
Paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.
Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against refusal… of a visa.’
Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
The considerations in the Direction that will be relevant in the present case may be significantly different from those in the usual case where the outcome of the Tribunal’s decision may determine whether an Applicant will be allowed to remain in Australia. This is especially evident in this case regarding the consideration of Australia’s international non-refoulement obligations.
ISSUES FOR DETERMINATION
The issues for the Tribunal to determine are:
(a)whether the Applicant passes the character test as defined in subsection 501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether the discretion in subsection 501(1) of the Act should be exercised.
EVIDENCE BEFORE THE TRIBUNAL
Background and migration to Sweden
In a statement dated 29 January 2020, the Applicant stated that he was born in Samawa in Iraq in March 1981. He has been known by other names, including ZKRY.[15] He is a Muslim Shia. He has never been married and has no children.[16]
[15] G17, 189; G5, 76.
[16] G5, 76.
The Applicant has six brothers and two sisters. His father and a sister died in the war. Following their death, the family fled to Saudi Arabia and stayed in a camp set up by the Americans. Four of his brothers and his surviving sister are living in Gothenburg in Sweden and are Swedish citizens.[17] They were taken there in 1991 by the United Nations. He and his mother and two younger brothers remained in Iraq.[18] His mother and youngest brother still live in Iraq.[19] His mother is not in good health and suffers from diabetes and high blood pressure.[20]
[17] G10, 136.
[18] G5, 78-79.
[19] G10, 136.
[20] G5, 79.
When he was aged 19 or 20 years, the Applicant fled Iraq as his life was in danger.[21] At the MRD hearing in February 2019, he told the Tribunal:
[a] party or group of people had something against him because they believed his brothers were part of the Shia uprising against Saddam Hussein. ‘They’ belonged to Saddam Hussein’s government and were part of his Secret Services.[22]
[21] G5, 76.
[22] G5, 79 para j.
The Applicant went to Sweden on 17 July 2001 and entered using his birth name. He applied for, and was granted, a permanent residence permit on 11 September 2002.[23] He worked as a taxi, bus and truck driver in Sweden.[24]
[23] G4, 61; G14, 173.
[24] G5, 76.
Criminal history in Sweden
According to Swedish Court Documents, on 30 May 2006, the Applicant was found guilty of beatings, illegal restraint of freedom of a person, gross violation of person space, unlawful threats, rape and abuse of judicial procedures (‘2006 offences’).[25]
[25] TB8, verdict number Bxx6-06.
The factual circumstances relevant to these offences occurred during the evening and morning of 20-21 March 2006. The victim, the Applicant’s former partner, JS, was at a party when the Applicant arrived and looked angry. She was afraid he would make a scene, so she went outside with the Applicant.[26] He wanted to talk to her, but she told him the relationship was over. The Applicant grabbed her and asked her to sit in the car. She did so and he drove off. She asked him to pull over and tried to open the car door and he pulled her back in the car. He then hit her with both an open and clenched hand to her head and to her arms and pushed her. The Applicant then stopped the car as the victim wanted to go to the toilet. When she refused to get back into the car, he pulled her in. He then punched her several times to the face. She managed to get out of the car, but he grabbed her by the hair and pulled her back in. He threatened to kill her and continued to hit her. The victim was bleeding from the mouth caused by the Applicant’s punches, and she spat blood in the car. He made further threats against her, including that he ‘would kill her and ditch her somewhere and that it would be a week before anyone found her and that during this time, he would have time to go to Iraq.’ [27]
[26] Transcript, 108-109; TB8, 282.
[27] Transcript, 109; TB8, 282.

The victim persuaded the Applicant to go back to his house. When they arrived at his home, JS wanted him to drive her home, but he refused. When they entered the apartment, she laid down on the couch and thought about leaving the apartment after the Applicant had fallen asleep. The Applicant took a blanket and a pillow and laid down in the hallway and said, ‘you’re not getting out of here.’ He asked her to lie down on the bed. He undressed the victim so that she was in her underwear, and then laid over her. The victim wanted him to leave her alone, because she was in pain from the earlier assaults. He then licked her genital area and she told him to stop. He used lubricant and pushed his penis into her vagina. She couldn’t get him away. He then pressed his fingers into her anal cavity. She told him it was painful. After he came, he said to the victim, ‘now you can report me for rape.’ He drove her home the next morning, and during the drive he said, ‘watch out. This was just a little warning.’ He said he would kill her children if she went to the police.[28] As soon as she arrived home, the victim called the police.
[28] Transcript, 109; TB8, 283.
The District Court accepted the victim’s testimony and it formed the basis for the assessment of the case. The Court found that the charge was fully substantiated. The Court was satisfied that the Applicant was aware that the intercourse with JS was non-consensual.[29] The Court found that the acts committed by the Applicant against the victim were ‘ruthless’ and ‘led to serious violation of [the victim].’[30]
[29] TB8, 285.
[30] TB8, 276.
The Applicant received penalties of four years’ imprisonment, payment of 500 SEK to a victims’ fund, payment of a fine to the victim of 153,200 SEK and other payments of fees to people involved in the Court proceedings.[31] A claim for his expulsion from Sweden was dismissed. In determining the length of the prison sentence, the District Court took into account ‘that the crime [had] been directed against a loved one in a vulnerable situation and who [had] been at a psychological and physical disadvantage.’[32]
[31] TB8, 279.
[32] TB8, 286.
The Applicant applied for review of the conviction. The Appeal Court changed the convictions to imprisonment for three years and six months, payment of a fine to the victim of $152,600 SEK, other payments for fees to people involved in the Court proceedings and expulsion from Sweden for a period of 10 years.[33] The Court’s written findings state that the reduced prison sentence was because of the suffering that the Applicant would experience due to his expulsion from Sweden.[34] The Supreme Court confirmed the findings of the Appeal Court.[35]
[33] TB8, 274.
[34] TB8, 277, verdict number Bxx30-06.
[35] TB8, 273, verdict number Bxx82-06.
In his statement dated 29 January 2020, the Applicant stated that the ‘problems’ with his former partner occurred after they had been in a relationship for three and a half years. He decided to leave her as she had cheated on him. He left the house and moved in with his brother and began another relationship. His former partner ‘became jealous and angry’ and sent him threatening text messages. She worked in the immigration field in Sweden and she knew that if he were convicted, he would be deported from Sweden. She made complaints against him and he was convicted of offences, including rape, and imprisoned.[36]
[36] G10, 136-137.
The Applicant denied responsibility for the offences:
I still deny that I ever harmed or threatened her. She was my first love and I would never do that. I have been in relationships since then and I have never had any problems.
I truly believe she just hated me after I left her and that she was feeling vindictive and wanted to get back at me. For example, how was I to prove that when we had sexual intercourse it was with consent? It was her word against mine and the judge believed her.
She was a Swedish citizen 10 years older than me and I was much younger, new to Sweden and unsophisticated compared to her. I would never hit a girl or take advantage of her.[37]
[37] G10, 137.
In his oral evidence, the Applicant agreed he had been convicted of the offences, but said they were ‘unfair’ and he ‘was not given justice’.[38] He later told the Tribunal he had forgotten everything that happened in Sweden, and he refused to answer any further questions in relation to the offences:
I can’t remember anything, anything at all about my time in Sweden. And I just want to convey that to you, that I have forgotten everything about my time in Sweden.[39]
…
Like I told you, the issue … of the problem that happened with my ex, I cannot remember at all. And you can keep asking me about it all day, but I can’t remember.[40]
…
I can’t remember, and I’m not going to talk about anything about the issues in Sweden.[41]
[38] Transcript, 106.
[39] Transcript, 110.
[40] Transcript, 111.
[41] Transcript, 111.
On 2 August 2008, the Applicant was convicted by the District Court of Gothenburg of unlawful threat.[42] He was already in prison at this time and received a penalty of three months’ imprisonment.
[42] TB8, 293, verdict number Bxxx59-07.
The factual circumstances relevant to this offence was that on 1 September 2007, the Applicant called the same victim, JS, on her mobile phone and said to her, ‘you bitch, don’t think you can live in happiness. I will kill you and your children.’ He made two further calls of a similar nature to the victim which were also heard by the victim’s mother.[43] The victim informed the police about these calls. She also received text messages from the Applicant in which he wrote that her daughters would be raped and killed.[44] She wasn’t feeling well for days after the incident. She went to the prison where the Applicant was being detained to see whether it was him who had called her. Her fiancé also received a threatening call from the Applicant.[45]
[43] TB8, 294.
[44] TB8, 295.
[45] TB8, 295.
The Applicant told the Tribunal that he does not remember anything in relation to this offence, and he maintained his refusal to answer questions about events that happened in Sweden.[46]
I don’t like talking about the events. I don’t like talking about the story, and I can’t remember it. And I have decided in myself, within myself – and I have taken the decision that this story is behind my back, and I put it in the past, and that I’m not going to remember – I’m not going to talk about it.[47]
[46] Transcript, 112.
[47] Transcript, 112-113.
Expulsion from Sweden and return to Iraq
The Applicant was expelled from Sweden for a period of 10 years, not allowing his return until 2 August 2016.[48] He was deported to Iraq in August or September 2008.[49]
[48] G14, 171.
[49] G5, 79.
When the Applicant returned to Iraq, he went to Samawa where he lived with his mother. In 2009, he fled to Bagdad because ‘he was having problems with the [Al Jawaber] tribe and the militia’ who were after him and wanted to kill him.’ He ‘received a threatening letter and news from a relative that they were seeking revenge.’[50]
[50] G5, 80 para y.
The Applicant lived in Bagdad from 2009 to 2011. He stayed in Hayy El Jihad in his cousin’s house and did not go outdoors.[51] He could not leave Iraq as he did not have a passport.[52]
[51] G5, 80.
[52] G5, 80, para z.
Migration to Australia and grant of protection visa
The Applicant left Iraq and travelled by car to Syria and then took a plane to Denmark where he obtained a visitor visa for Australia using the Swedish passport of his brother.[53] He travelled to Australia by plane and arrived at Sydney airport on 9 September 2011. He was questioned at the airport and falsely stated that he is a Swedish citizen and had been living in Sweden for the past 17 years with his wife and four children.[54]
[53] G5, 81.
[54] G4, 57.
The Applicant lodged an application for a Protection visa using an alias name on 11 October 2011. The Applicant used a false Iraqi passport with his protection visa application.
In his protection visa application, the Applicant relevantly provided the following information:
·he had not been known by any other names and his date of birth was 2 May 1982;
·he had lived in Iraq from his birth until his arrival in Australia in 2011;
·his mother was killed by her brother in an ‘honour killing’;
·he had been arrested by the Mahdi militia in 2010, detained for six months and interrogated and tortured;
·he paid a bribe to be released from prison and he left Iraq because the Mahdi militia were planning to murder him. [55]
·he arrived in Australia by plane in mid-February 2011 using a fraudulent Iraqi passport.
[55] G4, 57; TB7, 141
The Applicant was granted the Protection visa on 14 December 2012.[56]
[56] G14, 170; G4, 51.
In his oral evidence to the Tribunal, the Applicant admitted that he provided incorrect information in his protection visa application, applied for the visa using a false name, and his claims for protection were entirely fabricated.[57] He lied because he had ‘no other option’. He ‘had to either lie or die.’[58] He told the Tribunal that he made false claims as he was ‘forced’ by his lawyer not to tell the truth because of his criminal record in Sweden, and if he did not lie he would go to gaol and be sent to Iraq.[59] He ‘was afraid that what he had gone through in Sweden would come up in a search.’[60] He admitted that ‘what he did was wrong, all wrong.’[61] The Applicant also agreed that the documents he attached to his protection visa application, including the Iraqi passport, were forgeries.[62]
[57] Transcript, 50-52.
[58] G5, 79.
[59] G5, 79; Transcript, 54.
[60] G5, 80.
[61] G5, 79.
[62] Transcript 57.
The Applicant confirmed that he does not wish the Tribunal to have regard to his original protection visa claims in considering the review application in relation to the refusal of the Bridging visa.[63]
[63] Transcript, 54.
Return to Iraq
On 20 March 2014, the Applicant departed Australia and travelled to Iraq for a period of two months.[64] He returned there so that he could sign some documents required for his mother to sell his father’s property. His mother was very unwell at the time and suffering from breast cancer. He travelled under the name ZKRY as he is not known by this name in Iraq. He was unable to go to his hometown because he was too scared he would be recognised and possibly killed.[65] He was unable to see his mother because she was too unwell to travel.[66]
[64] G14, 173.
[65] Transcript, 87.
[66] Transcript, 89.
International Treaties Obligation Assessment
On 23 January 2018, an International Treaties Obligation Assessment was prepared in relation to the Applicant. It was noted that the Applicant had provided a timeline of events that were incorrect, including that he had resided in Iraq from birth until his travel to Australia in 2011. The delegate found that the:
situation in Iraq was not and is not as he has portrayed it during his PV application process and he fabricated his protection claims in order to achieve a positive outcome on his PV application.[67]
[67] G14, 173.
The delegate concluded there was considerable reason to doubt the Applicant’s claims that he was persecuted in Iraq for reason of his religion and imputed political opinion. She was not satisfied that the Applicant had an adverse profile in Iraq for any Convention reason, and concluded that he is not owed non-refoulement obligations under any international instrument to which Australia is a party.[68]
[68] G14, 173-174.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 11 December 2019 records the following convictions for the Applicant:
During cross-examination, the Applicant was questioned about these offences. He told the Tribunal:
I’ve not done anything criminal in Australia and if anything I’m prepared to dispute it.[69]
[69] Transcript, 24.
The Applicant was asked about his 2012 conviction for the offence, Client solicit prostitute w/i view prescribed premises. He told the Tribunal that he did not think at the time that this was a criminal offence.[70] He explained that he had only been in Australia for three months and he was with a friend and they were driving around in Liverpool. His friend told him that ‘in the street there were girls there who you can have sex with if you give them some money.’ He said, ‘Let’s go in there and have some fun’. They drove up to a girl who asked, ‘do you want a girl for sex?’ and he said ‘yes’. The girl then said, ‘agreement is complete’ and she told the police and he and his friend were fined.[71]
[70] Transcript, 25.
[71] Transcript 26-27.
The Applicant was questioned about his failure to attend court in relation to this offence. He said he could not remember attending court, but he does recall being given a fine.[72]
[72] Transcript, 27; TB1, 5.
The Applicant was asked about his 2014 conviction for Drive a motor vehicle while license suspended. He told the Tribunal that the offence occurred when he was driving from Sydney to Brisbane and he was stopped by police for speeding. He said the offence was not intentional, and he did not know it was a crime until he went to court in relation to the offence.[73] He agreed that he continued to drive his car after he had been told not to drive and given a number plate confiscation notice by police.[74]
[73] Transcript, 28.
[74] Transcript, 30.
The Applicant was questioned about his 2017 driving offences. He agreed that these are criminal activities and that he knew they were at the time.[75]
[75] Transcript, 32.
The Applicant told the Tribunal that when he was asked about whether he had committed criminal offences he understood this to mean offences like assault causing injury or theft; offences for which a person is imprisoned.[76]
[76] Transcript, 32.
Bridging visa application
In his application for the Bridging visa signed and dated 29 July 2019, the Applicant provided incorrect information in relation to his character.[77] In answer to the question, whether he has been convicted of an offence in any country, the Applicant answered ‘No’. In answer to the question, whether he has been deported or excluded from any country, the Applicant answered ‘No’.[78] The Applicant told the Tribunal that he ‘made an error’ and he cannot deny he has criminal convictions.[79]
[77] G7, 100-108.
[78] G7, 106; Transcript, 58.
[79] Transcript, 59.
The Applicant provided additional information in the application form stating:
In my life, I have never broken the law and have no offences against me in Australia.[80]
[80] G7, 104.
The Applicant explained to the Tribunal that he did not know the offences of which he has been convicted in Australia were crimes, as he ‘used to think that an offence is different to a crime.’[81]
[81] Transcript, 61.
Relationship with partner
The Applicant has been in a relationship with his partner SY since 2017. She is divorced and has three children, two boys aged 22 and 20 and a daughter aged 14 years. He and his partner are planning to marry. They became engaged in 2018 approximately one year prior to him being detained.[82] She visits him in detention. It has been very difficult emotionally and mentally for the Applicant to be separated from his fiancée and her children.[83] If he were removed from Australia, he would continue his relationship with his fiancée, but she would not go with him to Iraq.[84]
[82] Transcript, 18-19.
[83] G10, 139.
[84] Transcript, 20-21.
The Applicant’s partner and her daughter, S, provided written statements but did not give oral evidence at the hearing. The Applicant told the Tribunal that his partner works and ‘she wouldn’t have the time for the Tribunal’ and so he did not ask her to give oral evidence.[85] In her written statement dated 19 September 2019, SY states that she and the Applicant have been engaged for over two years.[86] In her undated statement, S writes that she has known the Applicant for two and a half years and he is like a ‘second father’ to her and he has always been there for her.[87]
[85] Transcript, 116.
[86] G13, 144.
[87] G13, 145.
Current protection claims
The Applicant fears the Al Jawaber tribe and the Tayyar Al Sadri militia in Iraq.[88] His former partner in Sweden, is a member of the Al Jawaber tribe, and this tribe belongs to the Al Sadri militia. They want to harm him because of the harm he caused to his former partner.
[88] G5, 81.
The Applicant further claims that a group in Australia that assisted him to obtain the false Iraqi passport told the militia in Iraq about his crimes in Sweden. They have come looking for him in Iraq, and he and his younger brother’s life have been threatened. In early February 2019, his brother sent him a video showing the militia coming to his brother’s house and threatening his life if they find out he has had any contact with the Applicant.[89] The Applicant provided photos of his mother with a blackened and swollen eye, which he claims is evidence of her being recently assaulted.[90]
[89] G5, 82; G16, 182-183.
[90] G16, 184-185.
The Applicant told the Tribunal that his family has tried to negotiate with the Al Jawaber tribe but have been unsuccessful. The tribe sent four people to Australia and he was attacked by masked men on two occasions in 2016 and 2017. These incidents were reported by the Applicant to the police.[91] The Applicant knows the names of the people behind these attacks, not the attackers themselves. No one has been arrested for these attacks on the Applicant.[92]
[91] G5, 82.
[92] G5, 82.
In March 2020, the Applicant provided additional information to the Department dated 14 June 2009 which he claims shows that relatives of his former partner from the Al Jawaber tribe have a complaint against him because of his ‘illegal and illegitimate relationship’ with her. The document titled Blood Shedding (Permit to Kill) states that members of the tribe are authorised to kill the Applicant, and that his family have been threatened and told to leave the province until they surrender the Applicant.[93]
[93] G16, 187.
The Applicant told the Tribunal that he now has an outstanding warrant for his arrest and prison sentence in Iraq.[94] He was sentenced in absentia by the High Court in Iraq on 2 December 2019 and if he returns to Iraq he will be arrested because of this sentence.[95]
CONSIDERATION AND REASONS
[94] G15, 176-181.
[95] G16, 178-179; Transcript. 120.
Does the Applicant satisfy the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63]. By virtue of the Applicant’s sentence in Sweden to a term of imprisonment for three years and six months, he has a substantial criminal record (as defined by subsection 501(7)(c) of the Act). Accordingly, he fails the character test (subsection 501(6)(a) of the Act).
In his submissions to the delegate dated 2 February 2020, the Applicant accepted that he does not pass the character test.[96]
[96] G9, 131.
The Tribunal finds on the basis of the evidence before it that, as a matter of law, the Applicant does not satisfy the character test.
Should the discretion to refuse the Bridging visa be exercised?
In determining whether the discretion to refuse the Bridging visa should be exercised, the Tribunal must have regard to the considerations in Part B of the Direction.
Primary Considerations
A. Protection of the Australian community
Pursuant to paragraph 11.1 of Direction 79, this factor involves consideration of:
(a)the nature and seriousness of the conduct, and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
(a) Nature and seriousness of conduct
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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 the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, 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 under 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 to be serious;
(f)Subject to subparagraph (b) above, 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.

The Applicant’s 2006 offences were committed in Sweden and are, according to paragraph 11.1.1(j), classified as offences in Australia.
The authorities make clear that it is not open to the Tribunal to challenge the fact of a criminal conviction in circumstances in which it is the basis for the exercise of a power. In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence, summarised the applicable principles as follows at [78]-[79]:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The Applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP, stated at [92]:
… The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
As in HZCP and LQZW, the convictions and sentences imposed on the Applicant in Sweden were a precondition to the refusal decision under section 501 of the Act, and are the foundation of exercise of the discretion by the Tribunal. In this case, as in LQZW, the Tribunal must proceed on the basis that the Applicant did commit the offences for which he was convicted in Sweden, and the essential facts upon which the convictions were based. It is on this basis that the Tribunal must make its assessment of the likelihood of the Applicant re-offending.
The Tribunal accepts the factual basis for the convictions as stated in the findings of the District Court as outlined in paragraphs [43]-[44] above. To the extent that the Applicant’s version of events is inconsistent with these facts, the Tribunal rejects the Applicant’s version and accepts that contained in the Court’s findings.
The Tribunal finds that the Applicant’s criminal offending, particularly the 2006 offences, is very serious. As noted by the District Court in its findings, his offending was ‘ruthless’ and led to a ‘serious violation’ of his victim. His offending behavior included a sexual assault against the victim, and physical and verbal assaults against her that resulted in her sustaining serious injuries. According to paragraph 11.1.1(a) and (b) of the Direction these offences must be viewed as serious in circumstances where they involved crimes of both a violent and sexual nature against a woman.
The Applicant’s criminal offending in Australia, while not as serious as his crimes in Sweden, is nevertheless significant. He has driven in a manner described by the New South Wales Police as demonstrating a ‘blatant disregard of the road rules.’[97] In 2014, he continued to drive his car despite being told by police not to do so and after having been given a number plate confiscation notice. Having regard to paragraph 11.1.1(g) of the Direction, the Tribunal has considered the frequency of the Applicant’s driving offences, and notes that he received four convictions for driving while either suspended or disqualified during the period January 2014 to May 2018.
[97] TB5, 80.
Guided by paragraph 11.1.1(f) of the Direction, the Tribunal finds that the seriousness of the Applicant’s offences is further reflected in the lengthy prison sentence imposed for the 2006 offences. The custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].
Having regard to paragraph 11.1.1(h) of the Direction, the Tribunal finds that the Applicant’s numerous offences in Australia for driving during disqualification periods and exceeding the speed limit illustrate a pattern of blatant disregard for Australian laws and the safety of the community, and further indicates the serious nature of his offending. In Re Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [45] Senior Member Tavoularis made the following observations, which apply equally to the Applicant’s offending:
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community” [footnote omitted]. Other parts of [the applicant’s] criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.[98]
[98] Citing with approval Re Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16].
Having regard to the considerations in paragraph 11.1.1(i) of the Direction, the Tribunal finds that the Applicant’s conduct with respect to entering Australia using his brother’s passport, lodging a protection visa application using a false identity, advancing false protection claims, using fraudulent identity documents, and providing false answers in visa application forms, is serious and demonstrates a disregard for the law and legal processes in the pursuit of personal gain. Deceptive and fraudulent conduct in the context of immigration processes is a very serious matter. Immigration fraud undermines the integrity of the visa programs, which operate on the basis that applicants will be truthful and not provide false or misleading documents or information. In Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255, Senior Member McCabe (as he then was) observed at [23]:
… dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what the applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.
(b) Risk to the Australian community
Paragraph 11.1.2(1) of the Direction provides that a decision-maker 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. Further, that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 11.1.2(2) provides for 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.
In considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 11.1.2(3) of the Direction cumulatively. These are:
(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 the 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 intended stay in Australia.
Paragraph 11.1.2(4) of the Direction provides a decision-maker 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.
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In many cases the harm to the Australian community or members of the Australian community should an applicant reoffend in a similar manner will be obvious. This is especially so in circumstances in which the Applicant has previously committed violent or sexual offences.
The Tribunal finds that if the Applicant were to re-engage in similar criminal conduct to that for which he was convicted in Sweden, the nature of the harm to victims would be that they would be sexually violated and/or subjected to violent assaults and physical harm. The effects of that kind of offending could include severe psychological injury and potential serious physical injury. The Tribunal finds that the nature of this harm is so serious that any risk that it might be repeated is unacceptable.
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has demonstrated no remorse for the offences for which he was convicted in Sweden and continues to deny that he committed those offences. The Applicant denies that he harmed or threatened the victim of his Swedish crimes, despite being convicted of multiple offences against her.[99] The Applicant blames his victim for his crime, asserting she was ‘feeling vindictive and wanted to get back at [him]’ and ‘it was her word against [his] and the judge believed hers.’[100] The Tribunal is also concerned that the Applicant’s continued attempts to downplay the seriousness of his offending suggest that any likelihood of rehabilitation is limited. The Applicant’s attitude in relation to his offences in Sweden is such that the Tribunal can have no confidence that he appreciates the serious harm he inflicted on his victim, nor that he would not again commit similar offences against a woman.
[99] G10, 137.
[100] G10, 137.
The Tribunal considers that the Applicant’s explanation for his offences in Australia and his dishonesty in relation to his dealings with the Department are implausible and inadequate. He claims he is remorseful for the offences he committed in Australia.[101] He says that he committed the Client solicit prostitute w/i view prescribed premises offence as he had recently arrived in Australia and was ignorant of Australian law. He claims he will never reoffend or engage in criminal conduct. However, little reliance can be placed on this claim when considered in the context of the Applicant’s conduct and attitude to his offending in Sweden.
[101] G10, 138.
The Tribunal notes that the Applicant has completed the PCYC Traffic Offenders Program, which indicates he has taken some steps to rehabilitate and address his poor driving record and disregard of traffic laws in Australia.
The Applicant claims that he will not in the future assume another identity, mislead authorities about his identity, or use forged or other false identity documents.[102] He attributes his use in the past of numerous alternate identities to his fear of harm in Iraq, poor legal advice, trauma from his time in prison, and a fear of being detained in Australia. He blames his lawyer for his provision of false protection claims in 2011, claiming he was ‘forced’ to do so. In relation to his provision of inaccurate information about his offending history in his current Bridging visa application, the Applicant claims he made an ‘error’ as he did not understand the difference between an offence and a crime. Based on the Applicant’s history and his demonstrated propensity to provide false and misleading information to authorities, the Tribunal places little weight on the Applicant’s sentiments of remorse.
[102] G10, 138.
The Applicant provided a number of character references that claim he is not a violent man.[103] The Tribunal has given these references limited weight for reason they make no reference to the Applicant’s criminal record in Australia or Sweden, and one incorrectly states that the Applicant ‘has never hurt or abused anyone in any way’.[104]
[103] G13, 146; G13, 150-160; TB7, 263-267; Exhibit A2.
[104] G13, 146.
The Tribunal has taken into account that if the Applicant is granted a Bridging visa, that visa will only allow him to remain in the community for a limited period of time, that is, until the final determination of proceedings relating to his Protection visa application. The limited time that the Applicant will spend in the community as the holder of a Bridging visa may limit the opportunity for the Applicant to reoffend while holding the Bridging visa.
Having taken into account all the matters outlined above, the Tribunal finds that the likelihood of the Applicant reoffending is moderate. As the Tribunal has found that the harm that would be caused to victims if the Applicant’s criminal offending were to be repeated is very significant, and having regard to paragraph 6.3(4) of the Direction, the Tribunal finds that any risk of the Applicant engaging in similar conduct in the future is unacceptable.
In conclusion, the Tribunal finds that that this primary consideration weighs in favour of the exercise of the discretion to refuse to grant a Bridging visa to the Applicant. The Applicant’s past criminal offending in Australia and Sweden is very serious, and there is an unacceptable risk that the Applicant will reoffend if he is released into the community on a Bridging visa.
B. Best interests of minor children in Australia affected by the decision
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal of the visa is, or is not, in the best interests of a child who may be affected by the refusal. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
Paragraph 11.2(4) of the Direction sets out a number of factors to be considered, where relevant, in assessing the best interests of minor children. These are:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfill a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has identified one minor child in Australia that may be affected by the decision to refuse him a Bridging visa, being his fiancée’s 14 year old daughter, S. The evidence before the Tribunal is that the Applicant commenced a relationship with S and his fiancée (SY) in 2017, and they became engaged in 2018. He claims that he is ‘like a father’ to his fiancée’s children. In her statement, S confirms that the Applicant has ‘always felt like a second father’ and without him she feels ‘empty and sad’.[105] SY states that S has ‘built a strong bond with [the Applicant] and looks up to him as her father.’[106]
[105] G13, 145.
[106] G13, 144.
On the basis of the evidence before it, and having regard to the factors listed in paragraph 11.2(4), the Tribunal notes that SY and the Applicant have been a couple for a relatively short period of time and they had not established a joint household prior to his detention in December 2018. Accordingly, noting the guidance in paragraph 11.2(4)(a) and (e) of Direction, the Tribunal finds that the opportunity for the Applicant to play a parental role with respect to S has been limited in duration, and her daily care and emotional needs are met primarily by her mother with whom she lives.
The Tribunal however accepts that the Applicant has assumed a significant role in S’ life and she regards him as a father figure. It therefore finds that it is in her best interest for the Applicant to be granted the Bridging visa so he can continue to play a role in her life.
C. 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 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which provision is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[107] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[108]
·However, 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 in the ultimate exercise of his or her discretion.[109] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[110]
[107] Charlesworth J at [66]; Stewart J at [91].
[108] Charlesworth J at [67]; Stewart J at [104].
[109] Charlesworth J at [76].
[110] Stewart J at [97].

The Applicant submits that the Australian community would expect him to be granted the visa in circumstances where the previous Tribunal proceedings with respect to his Bridging visa application took taxpayer money and the cost of continuing to detain the Applicant would be of concern to the community.[111]
[111] G9, 133-134.
Having regard to the guidance in the Direction, understood in accordance with the Full Federal Court’s decision in FYBR, the Tribunal finds that the expectation of the Australian community would be that the Applicant should not be granted a Bridging visa. It makes this finding on the basis of the Applicant’s record of serious sexual offences against a woman, his extensive history of blatant disregard for Australian laws, and his propensity to lie to and mislead Australian authorities in relation to his identity and circumstances.
The Tribunal has also had regard to the Principles in paragraphs 6.3 of the Direction, which support a finding that the Australian community would expect that the Applicant should not be granted a visa to live in the community on account of the serious crimes he has committed and the disrespect he has shown for Australian laws.
The Tribunal therefore finds that this primary consideration weighs strongly against the grant of the visa.
Other considerations
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 would be able to make a valid application for another visa, 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 W R) 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.
It is clear from the current authorities that the Tribunal is required to engage in an active intellectual consideration of the Applicant’s claim that he would suffer harm if returned to Iraq: Minister for Home Affairs v Omar [2019] FCAFC 188 at [34] and [39].
However, as outlined above, the outcome of this review application will not determine whether the Applicant is allowed to remain in Australia. Rather, it will determine only whether the Applicant can await the determination of the Federal Court proceedings relating to the cancellation of his Protection visa in the community, or whether he must await the outcome of those proceedings in detention.
As such, the outcome of this review has no bearing on whether the Applicant will be returned to Iraq in breach of Australia’s non-refoulement obligations. In these circumstances, the Tribunal finds that this consideration is of neutral weight in determining whether the discretion to refuse the Bridging visa should be exercised.
Impact on family members
Paragraph 12.2 of the Direction provides:
Impact of visa refusal on immediate family members in Australia, whether those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
This consideration relates only to immediate family members in Australia. The evidence before the Tribunal is that the Applicant and SY are unofficially engaged as they have not gone through the necessary cultural rituals to finalise their engagement. Accordingly, as the couple are not married nor in a de facto relationship, neither SY nor her children are immediate family members of the Applicant.
The Tribunal has however considered the potential impact on SY and her children of the refusal of the grant of a Bridging visa to the Applicant. The Applicant claims that he intends to have a child with SY.[112] In her statement, SY does not state whether she plans to have more children, nor does she indicate any impact the refusal of the Bridging visa will have on her three children.[113] In the Tribunal proceedings relating to the cancellation of the Applicant’s protection visa, she indicated that she would go to Iraq if the Applicant were returned there.[114] However, the Tribunal notes in these proceedings, the Applicant indicated that she would not go with him to Iraq.[115]
[112] G10, 139.
[113] G13, 144.
[114] G5, 93.
[115] Transcript, 20-21.
On the evidence before it, the Tribunal finds that, whereas SY and her children will be disappointed if the Applicant is not granted a Bridging visa, they will not experience actual hardship if the visa is refused. The Tribunal therefore gives limited weight to this consideration in determining whether to exercise the discretion to refuse the Bridging visa.
Impact on the Applicant
The Tribunal has also considered the effect on the Applicant of refusal of a Bridging visa. While this consideration is not listed in paragraph 12 of the Direction, the matters which can be taken into account as the ‘other considerations’ are not limited to the matters listed in that paragraph. The Tribunal accepts that refusal of a Bridging visa would have a negative effect on the Applicant. If the Applicant is refused a Bridging visa, he will be deprived of living in the community and spending time with his fiancée pending the outcome of the Federal Court proceedings relating to his Protection visa application.
The Tribunal notes that if the Applicant is refused a Bridging visa, he will remain in detention at least until the proceedings in the Federal Court are finalised. The evidence before the Tribunal is that a hearing date for these proceedings has not yet been set.[116] If he is successful in these proceedings, the cancellation of the Applicant’s Protection visa will need to be reconsidered by the Department. If he is unsuccessful in the Federal Court proceedings, then, subject to any further appeal, he will be removed from Australia.
[116] Transcript, 118.
The Tribunal finds that this consideration weighs in favour of setting aside the Reviewable Decision. However, it does not outweigh the primary and other considerations that strongly support the exercise of the discretion to refuse the grant of a Bridging visa to the Applicant.
Impact on victims
Paragraph 12.3(1) of the Direction provides:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
There is no evidence before the Tribunal of the impact of a decision to grant a visa on members of the Australian community, including the victims of the Applicant’s behaviour and their family members. In these circumstances, the Tribunal places no weight on this consideration.
Impact on Australian business interests
Paragraph 12.4(1) of the Direction provides:
Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
There is no evidence before the Tribunal that any business interests would be affected if the Applicant is denied a Bridging visa. Accordingly, the Tribunal places no weight on this consideration.
CONCLUSION
Should the power to refuse the Applicant a Bridging visa be exercised?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly in favour of visa refusal in this case. The Tribunal has found that the Applicant’s offences in Sweden were very serious and would cause considerable harm to female victims in Australia if repeated. In addition, if he were to commit further driving offences, he would put members of the Australian community in danger. The Tribunal has found that there is a moderate and real risk that the Applicant will re-offend if he is released from immigration detention on a Bridging visa pending the ultimate outcome of proceedings relating to his Protection visa application.
The primary consideration of the best interests of minor children weighs against the exercise of the power to refuse the Applicant a Bridging visa. It is in the best interests of the Applicant’s fiancée’s daughter, S, for the Applicant to be granted the Bridging visa so he can continue to play a role in her life.
The primary consideration of the expectations of the Australian community weighs strongly in favour of refusal of the Bridging visa. The Australian community would expect that the Applicant should not be granted a visa to live in the community on account of the serious crimes he has committed, particularly overseas, and the disrespect he has shown for Australian laws.
Of the other considerations, the Tribunal has found that none of these considerations support the exercise of the discretion to grant the Bridging visa.
After considering all of the relevant considerations in this matter and the weight attributed to them, and informed by the Principles in paragraph 6.3 of the Direction, the Tribunal is satisfied that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh any considerations which support the grant of a Bridging visa to the Applicant.
The Tribunal finds that the Applicant does not pass the character test and that the discretion to refuse the Applicant a Bridging visa should be exercised.
Therefore, the Tribunal finds that the Reviewable Decision to refuse the Applicant’s application for a Bridging visa, is the correct and preferable decision.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

......[sgd]..................................................................
Associate
Dated: 3 August 2020

Date(s) of hearing: 8 and 9 July 2020

Applicant: Self-represented

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 2648

21 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Date(s) of hearing:	8 and 9 July 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Sparke Helmore Lawyers