ZKYX and Minister for Home Affairs (Migration)

ZKYX and Minister for Home Affairs (Migration) [2019] AATA 1414 (5 June 2019)
Division:GENERAL DIVISION
File Number(s):2019/1753
Re:ZKYX
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth

Date:5 June 2019
Date of written reasons: 26 June 2019
Place:Brisbane

The decision under review is affirmed.
............[Sgnd]............................................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – refusal to grant a visa – s 501 character test applied – whether discretion to refuse visa should be exercised – considerations in Direction 79 – whether considerations weigh in favour of refusing visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
26 June 2019
INTRODUCTION

This matter relates to an application for review filed by ZKYX (“the Applicant”) on 28 March 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 21 March 2019 to refuse his application for a Bridging E (Class WE) visa.
At the hearing before me, the Applicant appeared unrepresented and assisted by a Punjabi interpreter; the Respondent was represented by Mr Jake Kyranis of Sparke Helmore Lawyers.
BACKGROUND
The Applicant is a 22-year-old citizen of India. He is from Batala, Gurdaspur, Province of Punjab, India. He is single. His father is deceased and his mother and brothers live in India. The Applicant completed his education in India.
The Applicant arrived in Australia on 21 December 2016. He was granted a subclass TU-500 (Student) visa on 29 December 2016.[1] That visa ceased on 1 June 2018. He began studying a course in Business and after 5 – 6 months he transferred to a course in Mechanical Engineering which he was undertaking until he was taken into custody for the offence to which I will refer to in a moment.
[1] Exhibit A, G Documents, G15, Movement Records, page 131.
On 30 November 2018, the Applicant appeared before the District Court of Queensland for sentencing in relation to two counts of sexual assault, one count of possessing child exploitation material, and one count of doing an indecent act.
Taking into account that the Applicant had spent time in custody and approximately six months in immigration detention, the Sentencing Judge, His Honour Judge Lynham, imposed the following sentence:
·In respect to the two charges of sexual assault, he was sentenced to imprisonment for a period of 12 months in respect of each count to be served concurrently with each other.
·In relation to the charges of possessing child exploitation material and doing an indecent act, the Applicant received a sentence of three months’ imprisonment on each count to be served concurrently with each other and concurrently with the sentence for the two counts of sexual assault.
·The sentence was wholly suspended.
On 4 January 2019, the Applicant made an application for a Protection (Class XA) visa.[2] In connection with that application, he made an application for a Bridging (Class WE) visa on 7 January 2019.[3] It is the latter visa application that is the subject of this review.
[2] Exhibit F, Decision Record dated 23 April 2019 – Migration & Refugee Division, Administrative Appeals Tribunal, page 2, paragraph [16].
[3] Exhibit A, G Documents, PG3, Notice of intention to consider refusal of visa application, page 9.
In relation to the application now before the Tribunal, a Notice of Intention to Consider Refusal under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) was sent to the Applicant on 9 January 2019.[4] The Applicant was invited to respond. No response was received.
[4] Ibid.
A further invitation to comment was sent on 20 February 2019.[5] No response was received.
[5] Ibid, PG5, Further Information document, page 60.
Another further invitation to comment was sent on 1 March 2019.[6] No response was received.
[6] Ibid, PG7, Further Information document, page 69.
On 25 March 2019, the Bridging visa application was refused.[7]
[7] Ibid, PG9, Notice of visa refusal, page 110.
On 28 March 2019, the Applicant applied for a review of the delegate’s refusal of the Applicant’s application for a Bridging visa decision to this Tribunal. As of the date of this hearing, no further comment or material has been received by the Tribunal from the Applicant.
The application for Protection (Class XA) visa has been decided. On 6 March 2019, a delegate of the Minister decided to refuse the grant of a Protection visa. That decision was the subject of an application for review and, on 23 April 2019, the Migration and Refugee Division of this Tribunal affirmed the decision not to grant the Applicant a Protection visa. The Applicant has appealed that decision to the Federal Circuit Court.
LEGISLATIVE FRAMEWORK
Relevantly, s 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.
The character test is defined in s 501(6)(a) of the Act. A person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act which provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)The person has been sentenced to death; or
(b)The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more;
…
ISSUES
The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to s 501(6) of the Act. After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant’s visa.
The issues for the Tribunal are:
(a)Whether the Applicant passes the character test as defined in s 501(6) of the Act; and
(b)If he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant the visa.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months.
SHOULD THE DISCRETION IN SECTION 501(1) BE EXERCISED?
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
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 Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces the previous applicable Direction, Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(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 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 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.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a visa refusal. Relevantly, at paragraph 7(1)(a) of the Direction, it states that a decision-maker must take into account the considerations in Part B of the Direction, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted a visa.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
Paragraph 11(1) in Part B of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(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 are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are (but not limited to):
(a)       International non-refoulement obligations;
(b)       Impact on family members;
(c)       Impact on victims; and
(d)       Impact on Australian business interests.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 11.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations contained in paragraphs 11.1(1)(a) and 11.1(1)(b) of the Direction in turn.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that … 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 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 crim 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 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.
Two Counts of Sexual Assault
In relation to the two counts of sexual assault, both offences occurred on 13 April 2018. The Complainant was a 42-year-old happily married mother. She bred guinea pigs and made arrangements with various fruit shops to obtain discarded fruit and vegetables to feed them. The Applicant was employed at a fruit shop. In about January or February 2018, the Complainant gave the Applicant her telephone number for the purpose of sourcing discarded fruit and vegetables.
First Count
On the day of the offence, the Applicant arrived at the Complainant’s home unannounced. The Complainant’s son answered the door after which the Complainant accompanied the Applicant to his car to help carry two boxes of lettuce. The Complainant showed the Applicant to her guinea pigs and then walked back inside her house. The Applicant followed her into the house uninvited. Once inside, the Applicant grabbed the Complainant by the shoulder, pulled her towards himself, and kissed her on the lips. The Complainant said no and made it plain that she was happily married. The Applicant gestured towards the Complainant’s breast, and told her they were nice and that he wanted to touch them. He moved his hand inside her clothes, pulled her breast from outside of her top and asked if he could kiss it. The Complainant said no; she was terrified and froze. The Applicant sucked the Complainant’s left breast. She tried to push the Applicant away. The Applicant pulled the Complainant into the lounge, pulled down her shirt and placed his hand on her bra, and began sucking her right breast. She pleaded with him to stop. He pressed his pelvis against the Complainant’s pelvis. The Complainant could feel his erect penis.
Second Count
The Complainant attempted to remove the Applicant from her home. The Applicant then grabbed the Complainant by the waist and shoulder and again touched her breasts while pushing his pelvis back and forth against her. The Complainant could feel the Applicant’s erect penis. The Complainant was able to get the Applicant to leave the house through the front door. Subsequently, her husband and brother came home; she reported the incident to them after which the husband reported incident to the relevant fruit shop.
The Learned Sentencing Judge, Judge Lynham, said, in reference to what he described as the Applicant’s bizarre conduct, that:
“… at about 3 pm you returned to the complainant’s house, entered through the front door and confronted the complainant inside the house and blamed her for making you lose your job. You were chased out of the house by the complainant’s brother. The complainant’s husband later telephoned you and asked why you sexually assaulted his wife, and you replied by laughing saying to the complainant’s husband “Come on my brother. I am just like your little son”. You were later arrested by police that night.”[8]
[8] Exhibit A, G Documents, PG13, Transcript – Sentencing Remarks, page 126.
Possessing child exploitation material
When police spoke to the Applicant on 13 April 2018, they inspected his mobile phone and located a video which depicted a naked female performing oral sex on a child aged between 18 months and two years. The Applicant was aware that the video was on his mobile phone.
Doing/committing an indecent act
This offence occurred on 24 July 2018 when the Applicant was in immigration detention. CCTV footage captured the Applicant rubbing and grabbing his penis through the outside of his pants. He then approached a female detention centre employee and sat down beside her. He continued to rub and grab his penis for over a minute while the employee was next to him. The employee told the Applicant that his behaviour was unacceptable and left.
The Learned Sentencing Judge, Judge Lynham, in his sentencing remarks, said:
“To say the least, [Applicant’s name redacted], your conduct in respect to the complainant relating to the two sexual assault charges was not only inappropriate but your explanation is fanciful. It’s a concerning feature that your offending occurred in the sanctity of the complainant’s own house, and it equally a concerning feature that not only did your offending involved touching on the outside of the complainant’s clothing, but you also caused the complainant’s breast to be exposed and you also kissed or sucked the complainant’s breasts. To say that your behaviour was bizarre is perhaps an understatement.
There is no explanation offered on your behalf as to why you were engaged in the behaviour, but the two sexual assault charges, coupled with the indecent act offence that occurred in the detention centre, at least suggest to me you have some perverted sexual predilections. There is no medical evidence which confirms that observation, but, nevertheless, any objective assessment of your conduct would rightly be an affront to any normal law-abiding citizen. If it be the case that you have any condition which has caused you to behave in this erratic and bizarre way, I’d strongly suggest you seek treatment for that.”[9]
[9] Ibid, pages 126-127.

The Learned Sentencing Judge had before him the Complainant’s victim impact statement detailing the effect of the offending upon her. The offending affected her both psychologically and emotionally. The statement detailed the very substantial effect the offending had upon her and that she now wants to sell her home where the incident occurred.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principles that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The offending occurred approximately 16 months after the Applicant first arrived in Australia.
During the hearing in this matter, the Applicant gave evidence in relation to the various charges for which was before the District Court of Queensland. As to the two counts of sexual assault, he denied that he committed any offence and accused his solicitor of failing to listen to him and fight for his case. He said that his solicitor said that money would be wasted in the Applicant pleading not guilty and going to trial. The Applicant said that he was made to feel like a criminal and that he was denied the opportunity to be heard.
In relation to the charges of sexual assault, the Applicant was given an opportunity to explain the circumstances of the offending. His evidence was troubling and inconsistent.
Initially, he said that when he attended the Complainant’s home on 13 April 2018 she initiated amorous advances to him by rubbing her back against him. He said “I was able to feel her feelings” and that he felt that she was attracted to him. He then said that he pleaded guilty to save the Complainant more than himself. He did not want her to get divorced. She had a child. He said that when the Complainant said “go now” she also said that he could come back another day and that they would do a threesome.
The Applicant subsequently said in evidence that, prior to 13 April 2018, he had been to the Complainant’s home on two occasions. On the first occasion, she made no amorous advance. On the second occasion, she made the amorous advance by rubbing her back into him. On the third occasion, namely 13 April 2018, he initiated contact with the Complainant by kissing her. He did this because of the conduct she displayed on the previous occasion. He denied taking hold of the Complainant as described by the Learned Sentencing Judge. He said that their interaction was consensual and that when she asked him to stop, he immediately did so.
In relation to the offence of doing an indecent act, the Applicant denied the factual circumstances of that offending as outlined in the Learned Sentencing Judge’s remarks. He accused those in authority of writing a report that was not true. He said that the female detention centre employee sat next to him as opposed to him sitting next to her and that she could have got up and walked away. He was evasive in explaining the circumstances of the offending. He eventually acknowledged that he was watching a television show with girls in bikinis and that he was sexually aroused. He said that the female detention officer was not near him and could not see what had taken place. He described the officer as being a person of his grandmother’s age. He finally acknowledged that he was rubbing his penis and he provided no adequate response when it was put to him that the CCTV recording of the incident showed him first rubbing his penis outside of his pants but then approaching and sitting next to the detention centre employee where he continued to rub himself in the same manner for approximately one minute.
As to the offence of possessing child exploitation material contained on his mobile phone, he initially said during the hearing in this matter it was not a video but was in fact an image. The learned judge’s sentencing remarks were then read to him. The remarks clearly indicate the material was a video depicting a naked female performing what appears to have been oral sex on a child aged between 18 months and two years. He then did not deny that summary. He initially said that he did not know that the ‘image’ was on his telephone. However, when the sentencing remarks were read to him, namely “…your own admission to being aware of that video being on your phone” – he provided no adequate response in denial of the allegation.
The two counts of sexual assault, committed in the Complainant’s own home when her son was on the premises and ignoring repeated pleas from the Complainant for him to stop, are serious violent offences of a sexual nature against the Complainant. The conduct falls within that conduct described in paragraph 11.1.1 of the Direction.
The Applicant’s demeanour by later that day turning up at the Complainant’s home and confronting the Complainant because he had lost his job demonstrates a fundamental lack of understanding of the gravemente of his offending, the impact his appalling conduct had upon the Complainant, and an absence of empathy for the Complainant in the aftermath of his offending. The Applicant’s response to the husband when they spoke by telephone defies common sense and further demonstrates a lack of understanding, contrition and remorse.
Further, the indecent act performed by the Applicant when in immigration detention, and in the presence of a female detention centre employee, further demonstrates that fundamental lack of understanding about the impropriety of his sexual misconduct.
It is understandable, given the circumstances of the offending, that the Learned Sentencing Judge was of the view that the Applicant had “some perverted sexual predilections”. That view is further evidenced when one considers the child exploitation material that was found on the Applicant’s mobile phone. The abuse of children in the creation of such pornographic material cannot be understated and gains traction from perverse individuals who seek out and use that material for the gratification of their prurient interests. Although the child in the video recording is not identified, the holding of such material is conduct which the Australian community would not condone nor tolerate in respect of any person who has the privilege of holding or being granted an Australian visa.
The Tribunal agrees with the Learned Sentencing Judge’s observation that the Applicant’s conduct “would rightly be an affront to any normal law-abiding citizen.” Albeit His Honour strongly recommended the Applicant seek treatment, there is no evidence before the Tribunal that the Applicant has done so.
However, the Applicant did say in evidence that he has seen a doctor whilst in immigration detention and he has been diagnosed with ‘an increase in hormonal level’, in particular when he sees images on television and is sexually aroused. He also said that he has been diagnosed as a person likely to contract breast cancer and he has asked that he receive medical treatment, but this has been refused. When asked why no medical report had been obtained and provided to the Tribunal and why no evidence has been presented to the Tribunal, he accused the detention centre staff of working to sabotage his case and that they did not care about him. I do not accept the Applicant’s evidence in the absence of any independent corroborative evidence.
The harm to the Complainant in relation to the sexual assaults was considerable. Having regard to the whole of the evidence, I find that these offences were serious offences of a sexual nature and violence against a woman. The offence as witnessed by the detention centre employee also shows similar disrespect for women and a lack of awareness and understanding of the seriousness of his conduct.
The offence of possessing child exploitation material is also a serious offence of a sexual nature involving a child.
Conclusion: Primary Consideration A
The Applicant’s evidence where he denied any act of misconduct either with respect to the Complainant or the detention centre employee is both alarming and disturbing. He fails to acknowledge his criminal conduct for which he was represented and pleaded guilty before the court. I find his explanation for his plea and the factual circumstances in which he now says the relevant offences occurred to be outrageous and untrue. I also find that the Applicant is not credible, reliable, or a witness of truth in his description of the events that gave rise to the offending. He demonstrates no contrition or remorse for his offending.
The Applicant has demonstrated a lack of understanding and appreciation about the seriousness of his conduct and its impact upon the Complainant. Such conduct in respect of each sexual offence was an affront to Australian society. There is a real risk to the Australian community, and in particular women and young children, should the Applicant commit further serious offences, and particularly those of a sexual nature.
This is an unacceptable risk to the community and, accordingly, Primary Consideration A weighs heavily in favour of the refusal to grant the Applicant a Bridging visa.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 11.2 of the Direction directs any decision-maker to make a determination about whether refusal is, or is not, in the best interests of a child or children who may be affected by the decision not to grant the Applicant a Bridging visa.
Conclusion: Primary Consideration B
No evidence was advanced that was relevant to this Primary Consideration.
Primary Consideration C: Expectations of the Australian Community
Paragraph 11.3 of the Direction sets out the third Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other series conduct by people who have been participating in, and contributing to, the Australian community for only 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.
There is no evidence before the Tribunal to explain or mitigate the Applicant’s conduct. Nor is there any evidence before the Tribunal to demonstrate the Applicant has undergone treatment such that there is an avoidance or minimisation of risk of him committing similar offences in the future. To commit acts of indecency upon a woman, to possess child exploitation material, and to conduct oneself whilst in detention as he did in a relatively short period of time since his arrival in this country (being approximately 16 – 19 months), represents an unacceptable breach of trust and I find that there remains an unacceptable risk that this trust will be breached in the future.
The nature and character of the offences committed by the Applicant are such that the Australian community would expect that he not be granted a visa. The Applicant has not participated or contributed to the Australian community to any meaningful extent in the brief period he has resided in Australia, save for his employment in the fruit shop which brought him into contact with the Complainant and gave rise to the commission of the two counts of sexual assault.
Conclusion: Primary Consideration C
Having regard to the whole of the evidence, Primary Consideration C weighs heavily in favour of the refusal to grant the Applicant a Bridging visa.
The Other Considerations
In deciding whether the discretion to refuse to grant a visa should be exercised, Other Considerations must be taken into account where relevant. These Other Considerations, set out in paragraph 12(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
The Tribunal will address these Other Considerations, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
Paragraph 12.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(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 being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa were refused, they would face the prospect of indefinite immigration detention.
The Applicant has not presented any evidence to the Tribunal in this matter in respect of this Other Consideration. On 7 January 2019, he made an application for a Protection visa. He claimed fear of persecution in India because he identified as bi-sexual.
On 6 March 2019, a delegate of the Minister refused that application. The delegate was not satisfied that the Applicant was in fact bi-sexual or a witness of truth, and found that he made up his claim of past harm and sexual identity in an attempt to prolong his stay in Australia. It was found he did not have a well-founded fear of persecution.
On 23 March 2019, the Tribunal dealt with the review of the delegate’s decision not to grant the Applicant a Protection visa. The Tribunal affirmed the delegate’s decision. In doing so, the Tribunal found there was no real chance that the Applicant would suffer persecution if returned to India, both now or in the reasonably foreseeable future. This decision is the subject of an application for judicial review to the Federal Circuit Court.
The question of whether non-refoulement obligations arise has already been decided by the Tribunal in deciding to affirm the delegate’s decision not to grant the Applicant a Protection visa. By its decision, the Tribunal has already assessed the Applicant’s claims and decided that there is no real chance that the Applicant would suffer persecution if returned to India now or in the reasonably foreseeable future. The Tribunal places significant weight on its decision to affirm the delegate’s decision to refuse the Applicant’s application for a Protection visa.
There is no fresh evidence placed before the Tribunal which enlivens any basis upon which it may be appropriate to reassess the non-refoulement obligations. The Tribunal has dealt with that question and found there are no such obligations. The Applicant has placed no evidence before the Tribunal during the course of this application that enlivens any issue of non-refoulement. When the Applicant was asked why he did not want to return to India, his response was “I haven’t done anything wrong, why should I go?” This was the height of his evidence in terms of why he did not want to return to India.
Conclusion: Other Consideration 1

I have had regard to the evidence and to the Tribunal’s previous decision to affirm the delegate’s decision to refuse the Applicant’s application for a Protection visa. The Applicant has raised no further evidence in support of non-refoulement. The Tribunal finds that there is no issue of non-refoulement that can be enlivened in the current application. As mentioned above, the Tribunal relies upon its previous decision in finding that there was no real chance that the Applicant will suffer persecution if returned to India, both now or in the reasonably foreseeable future. This Other Consideration is of no weight.
Other Consideration 2: Impact on family members
Paragraph 12.2(1) of the Direction provides that decision-makers must have regard to the following:
Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Conclusion: Other Consideration 2
No evidence was advanced that is relevant to this Other Consideration. This Other Consideration is of no weight.
Other Consideration 3: Impact on victims
Paragraph 12.3(1) of the Direction provides that decision-makers must have regard to the following:
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.
Conclusion: Other Consideration 3
I have received no evidence from the victims and I draw no conclusion from the Victim Impact Statement.[10] I find that the victim was affected by the conduct but I make no finding insofar as that impact relates to the application now before me. This Other Consideration is given no weight.
[10] Exhibit C.
Other Consideration 4: Impact on Australian business interests
Paragraph 12.4(1) of the Direction provides that decision-makers must have regard to the following:
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.
Conclusion: Other Consideration 4
Other than the fact of his employment in a fruit shop, there is no further evidence relevant to this Other Consideration. This Other Consideration is given no weight.
There are no Other Considerations that arise on the evidence.
CONCLUSION
Section 501(1) of the Act stipulates that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Based upon the Applicant’s serious offending, he does not pass the character test as defined in s 501(6) of the Act.
In then considering whether the discretion afforded by s 501(1) of the Act should be exercised, the Tribunal has had regard to the Primary and Other Considerations contained in Part B of the Direction. Accordingly, I find:
(a)Primary Consideration A weighs heavily in favour of refusal to grant the visa;
(b)Primary Consideration B is to be given no weight;
(c)Primary Consideration C weighs heavily in favour of refusal to grant the visa; and
The weight of the relevant Other Considerations is such that they do not outweigh Primary Considerations A and C.
I therefore find that, taking into account all of the relevant considerations in the Direction; that they weigh in favour of exercising the discretion to refuse the Applicant’s application for a Bridging visa.
Consequently, I exercise the discretion to refuse to grant the Applicant’s application for a Bridging visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

..........[Sgnd]..............................................................
Associate
Dated: 26 June 2019

Date(s) of hearing: 5 June 2019

Applicant: In person (via video-link)

Advocate for the Respondent: Mr Jake Kyranis (Solicitor)

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 1414

5 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	5 June 2019
Applicant:	In person (via video-link)
Advocate for the Respondent:	Mr Jake Kyranis (Solicitor)
Solicitors for the Respondent:	Sparke Helmore Lawyers