ZPWB and Minister for Home Affairs (Migration) - [2018] AATA 3097

ZPWB and Minister for Home Affairs (Migration) [2018] AATA 3097 (29 August 2018)
Division:GENERAL DIVISION
File Number:2018/3220
Re:ZPWB
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:29 August 2018
Place:Adelaide

The Tribunal affirms the decision under review.
..................................[SGD]......................................
Deputy President P Britten-Jones
CATCHWORDS
MIGRATION — Application for Bridging E (Class WE) visa — Visa refusal — Character test — Consideration of past and present criminal conduct — Consideration of past and present general conduct — Whether there is a risk the Applicant would engage in criminal conduct if allowed to remain in Australia — Offences — Unlawful assault — Domestic violence — Applicant fails the character test — Consideration of whether the discretion to refuse to grant the visa should be exercised — Consideration of primary considerations — Protection of Australian community — Expectations of Australian community — Consideration of other considerations — Decision under review affirmed.
LEGISLATION
Migration Act 1958, ss 91W, 499, 501(1), 501(6)
Direction No 65 — Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
CASES
Wong v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2002] FCAFC 440
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774; (2004) 83 ALD 411
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552
Maioha v Minister for Immigration and Border Protection [2018] FCA 1016
Ousley v The Queen (1997) 192 CLR 69
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
BNVM vMinister for Immigration and Border Protection [2018] FCA 131
REASONS FOR DECISION
Deputy President P Britten-Jones
29 August 2018
INTRODUCTION

The Applicant has been in Australia since November 2012 when he arrived as an unauthorised maritime arrival. He claims to be a stateless Faili Kurd formerly residing in Iran. He was detained upon arrival and has since spent over two years in detention. Whilst out of detention he has had a child and married; he has worked for a short time operating a fork lift in fruit packing sheds in Uraidla in the Adelaide Hills.
His current application for a bridging visa was refused on character grounds primarily due to him being convicted of an assault involving domestic violence in 2015.
The decision the subject of this review was made by the delegate of the Respondent on 24 May 2018 who refused to grant him a Bridging E (Class WE), subclass 050 (Bridging (General)) visa (the visa). The delegate:
(a)decided that the applicant did not pass the character test in s 501(6)(d)(i) of the Migration Act 1958 (the Act); and
(b)exercised the discretion under s 501(1) of the Act to refuse to grant him the visa.
The issues before the Tribunal are whether the applicant passes the character test and, if so, whether the discretion should be exercised to refuse to grant the visa.
BACKGROUND
The applicant was born on 22 May 1990. He arrived in Australia on 30 November 2012, classed as an unauthorised maritime arrival as defined by section 5AA of the Act. He was held in immigration detention until released on 10 April 2013 when he was first granted a bridging visa. That bridging visa ceased on 10 October 2013.
In about May 2013, he met the woman he was to marry (his wife) and a child was born to them on 11 August 2014. They married on 5 April 2017.
From 10 October 2013 to 31 March 2015, the applicant was in the community without a visa.
On 23 February 2015, the applicant assaulted his wife whilst at a nightclub on Currie Street. The incident was caught on CCTV footage both inside and outside the nightclub. He pleaded guilty and on 20 August 2015 he was sentenced to 4 months imprisonment with a suspended sentence upon entering into a good behaviour bond of two years.
The applicant had one previous conviction in the Magistrates Court for failing to produce his licence.
The applicant was detained again on 31 March 2015 after being arrested for the assault. He remained in detention until 19 October 2016 when he was released on a Bridging E visa which expired on 19 December 2017.
On 1 March 2016, while in detention, the applicant applied for a Safe Haven Enterprise visa (SHEV). The applicant claimed that he was stateless and that if returned to Iran he would be killed or imprisoned for life because he is a Faili Kurd. That application was refused by a delegate of the Minister for Immigration and Border Protection on 7 February 2017. The delegate did not accept that he was stateless, finding instead that he was a citizen of Iran. The delegate found that he did not face a real chance of persecution or serious harm in his home region. The delegate was not satisfied that the applicant was a refugee as defined in the Act and therefore was not satisfied that he was owed protection obligations.
In about October 2017, the applicant commenced working at fruit packing sheds in Uraidla.
The Immigration Assessment Authority affirmed the decision to refuse a SHEV on 21 November 2017 primarily on the basis of s 91W(2) of the Act for failing to provide evidence of his identity, nationality or citizenship. It was noted by the Immigration Assessment Authority that the applicant claimed that he was stateless and that it was dangerous for him to move about Iran because he had no identity documents and he risked being arrested and abused. These claims were not accepted and the Immigration Assessment Authority seriously doubted the applicant’s credibility as a witness.
On 7 December 2017, the applicant applied for judicial review of that decision. It is due to be heard in the Federal Circuit Court on 17 September 2018.
On 21 December 2017, the applicant lodged an application for a further bridging visa on the basis that he had lodged judicial review proceedings in relation to the decision to refuse his SHEV application. A notice of intention to consider refusal of the applicant’s visa application under s 501(1) of the Act was given on 23 January 2018.
On 7 June 2018, the applicant was notified of the decision made on 24 May 2018 to refuse his bridging visa application and he has since been detained.
EVIDENCE RELATING TO CHARACTER
The respondent seeks to impugn the character of the applicant by relying upon his criminal convictions and his general conduct both inside and outside of detention.
Criminal conduct
The assault for which the applicant was convicted took place on 23 February 2015 on Currie Street. It was caught on CCTV footage. Magistrate Anderson summarised the event in his sentencing remarks as follows:
You were with your fiancé inside the nightclub, you appeared to be intoxicated and you were bending over leaning against a wall. She was talking to you and Mr Blake says she was trying to persuade you to go home because she was worried about you. You moved towards her and threw three punches at her. Security staff properly became involved because of your aggression. They took you to the ground and they exerted quite a bit of force on you to keep you there.
The next part of the footage that I saw is outside those licensed premises. When you were outside the licensed premises, you were clearly arguing with the security staff and also arguing with her. At one stage, you go towards her and you slap her across the face. She then walks off up the road. It appears that things have calmed down and she is on the telephone. You then run at her, jump in the air and throw a full blooded punch towards her head. Somebody who apparently knows you intervenes and restrains you at a time when you are pulling her hair and when he intervenes to restrain you, you then go down to the ground and you don’t move.
The CCTV footage was shown at the hearing. The assault involved three separate episodes of violence occurring over a period of about five minutes. The first episode is inside the nightclub when the applicant punches his wife three times in quick succession in the head. Some minutes elapse before the next episode of violence. This time the applicant is standing outside the nightclub on the footpath. He is gesticulating towards the security guards seemingly in explanation of his conduct inside. As part of that explanation he lightly slaps his wife across the face. Seconds later, he forcefully slaps her across the face and the security guards intervene. She moves away as a result and the security guards take further action to physically restrain the applicant. A further two minutes elapse before the third episode when the applicant runs along the footpath towards his wife, jumps in the air with a kicking motion aimed at her and then throws a full-blooded punch towards her head. He scuffles with her whilst being restrained by another man but he manages to pull her hair with some force before being pulled off her.
During cross examination, when the passage from the Magistrate’s sentencing remarks was being read to the applicant, he was smiling. Counsel asked him if he thought it was funny and he said “no” and that he was laughing “because the Magistrate was using words that make me look bad”. I will come back to that.
The applicant was convicted on 1 April 2015 for the offence of failing to produce his licence. The offence details on the Complaint and Summons said “[b]eing the holder of a foreign driver’s licence … when he was requested by a police officer to produce his driver’s licence, did not forthwith comply with that request”. The applicant said that he does not know anything about it and that it could have been his cousin who often used his driver’s licence. He said that he could not remember and that he takes no responsibility for the offence.
It was put to the applicant that service of the Complaint and Summons appears to have been proved by a certificate saying that service was effected on 20 March 2015 upon him at Wakefield Street. He had no recollection of, or explanation for, this proof of service.
General conduct in and out of detention
The respondent contends that further evidence of the applicant being not of good character is that he remained unlawfully in the community without a visa from 10 October 2013 to 31 March 2015 at which time he was detained by departmental officers. Further, upon his bridging visa expiring on 19 December 2017, the applicant failed to report to the Department and he again remained unlawfully in the community for a second period. The applicant gave evidence that he did not know that his bridging visa had expired in December 2017 and that if he had known he would have done something about it. He said that he did approach someone who then offered to help him with the paperwork.
With respect to the expiry in October 2013, the applicant said he was not aware of what he had to do and he relied on his case manager. He said that he did contact Immigration but that he was new to Australia and did not understand what to do.
The respondent relies on numerous incidents in detention which are described in client incidents reports from January 2013 until June 2016.
The first incident was on 2 January 2013 when the applicant indicated to the detention centre client services officers that he would cut his throat and slit his wrists if he was not placed with his 17-year-old wife. The following day the applicant became “extremely aggressive” towards client services officers when they explained to him that they would help him once they had dealt with 32 new arrivals.
The applicant was asked about this in cross examination and he said that he was new to Australia and had a different culture and that he had made a mistake and had learnt now and would not make that mistake again.
The next incident was on 27 July 2015 in the dining hall when it was observed that the applicant and other detainees were in a very agitated state, shouting and screaming, and that all the tables and chairs were overturned and food was scattered all over the room. The officers had to separate the detainees and escort them to interview rooms.
The applicant was asked about this in cross examination and he said that he got into a fight with someone who had stolen his friend’s necklace. He said that he was not the one who threw the table but admitted that he did throw something. In his written statement, the applicant said “[w]e threw some of the tables around but it wasn’t my intention to hurt anyone”. When it was put to the applicant that he was acting violently the applicant smiled and denied it. He said that the detention centre was like a prison and that they were not able to complain.
The next incident was on 13 November 2015 when the applicant shouted angrily at another detainee saying “I am gonna fuck you and kill you”. An officer instructed the applicant to stop and move away. The officer reminded the applicant of his rights and responsibilities and he was subsequently relocated to support unit due to his adverse behaviour.
There were then a series of incidents in early February 2016 when the applicant was moved from Christmas Island to Adelaide so that he could attend a court hearing.
On 2 February 2016, just prior to noon the applicant was seen leaving his room shirtless with what appeared to be blood on both his exposed arms and abdomen. He was speaking loudly. An officer followed the applicant to the volleyball court. He was visibly distressed and began yelling to officers not to approach him and he kept repeating that he wanted to see Immigration and that he had a son. When approached, the applicant retreated and head-butted the support beam for the basketball hoop. He then threw his portable phone and a razor blade on the ground as he lowered himself to his knees, crying.
He was taken by ambulance to the Royal Adelaide Hospital where he commenced banging his head on the side of the hospital bed. He then requested to use the toilet facilities and he was discovered in the toilet with faeces smothered on his face and body. Later he got out of his hospital bed and banged his head on a wall on two occasions. He then removed a sheet from his bed and attempted to tie it around his neck in an effort to suffocate himself. Security staff restrained him and a doctor administered medication. In the evening he placed a bed strap around his neck and attempted to suffocate himself. Security was called again. Later that night the applicant refused food and water and said that he would continue to do so until he sees Immigration.
When some of the above incidents were put to the applicant in cross examination he could be seen smiling and laughing. He admitted to some of them and said that he could not remember others because of the medication that had been given to him. When asked specifically about the food and fluid refusal he said that he could not remember if he said that. He then said that he did not eat because of a toothache that he had been suffering from whilst in Christmas Island. There is no mention of a toothache in the client incident reports.
With respect to the incident with the bed sheet he said that was “another guy’s idea” who had told him that if he acted in a certain way then they would not take him back to Christmas Island.
The final incident was on 10 June 2016 when it was reported that use of force was applied on the applicant who was involved in an altercation involving another detainee. This followed an incident earlier in the day when the other detainee had taken down a poster drawn by the applicant and screwed it up and thrown it on the floor. The other detainee had punched the applicant in the mouth when he challenged him.
When asked generally about his conduct in detention, the applicant said that it was not his true character and that it was other persons’ ideas to do those acts so that he could get out of the detention centre. In his written statement the applicant said “[e]ven if I have been violent on occasion in the past, I have put this now behind me. My wife has taught me how to deal with my anger”.
During cross examination, the applicant spoke negatively about the officers on Christmas Island and said that it was not safe to complain to them because they would tell other persons in the community.
LEGISLATIVE FRAMEWORK
The character test
Section 501(1) of the Act provides: “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”.
Section 501(6) sets out the circumstances in which a person does not pass the “character test” referred to in sub-s (1). It provides in part:
Character test
For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;
…
Otherwise, the person passes the character test.
In exercise of the power given by s 499 of the Act, the Minister issued Direction No. 65 on 22 December 2014 (the Direction). Annex A of the Direction provides guidance on the application of the character test.
Section 1 of Annex A provides an overview of the character test relevantly with respect to discretionary visa refusal. It provides:
Discretionary visa cancellation or refusal
(1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. …
(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501 (6) of the Act.
(3) Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
…
(5) If the person does not pass the character test, section 501 (1) of the Act enables a visa to be refused … .
Section 2 of Annex A deals with the application of the character test and provides relevantly:
5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))
(1)      A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
(2)    The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3)      In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
(a) In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’
(4)      In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
(a) In Godley, Lee J went on to say ‘For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’.
Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
5.1 Past and present criminal conduct
(1)      In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
(a) The nature and severity of the criminal conduct;
(b)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(c) The cumulative effect of repeated offending;
(d) Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges’ comments, parole reports and similar authoritative documents; and
(e) The conduct of the person since their most recent offence, including:
(i) The length of time since the person last engaged in criminal conduct;
(ii) Any evidence of recidivism or continuing association with criminals;
(iii) Any pattern of similar criminal conduct;
(iv) Any pattern of continued or blatant disregard or contempt for the law; and
(v) Any conduct which may indicate character reform.
5.2 Past and present general conduct
(1)      The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence.
(a) In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
(2)      The following factors may also be considered in determining whether a person is not of good character:
(a) Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
(i) Involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
(ii) A history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country; or
(iii) Involvement in war crimes or crimes against humanity;
…

6 Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are 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.
(3) 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.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)      A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)      The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
Discretion to refuse to grant a visa

The Direction comprises Objectives, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse a non-citizen’s visa under s 501 of the Act.
Paragraph 6.1 of the Direction provides the Objectives:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. ... Where the discretion to refuse to grant … a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse … the visa given the specific circumstances of the case.
...
(3) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non‑citizen who does not satisfy the decision-maker that the non-citizen passes the character test … Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 provides general guidance in exercising the discretion to refuse the grant of a visa:
6.2General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B … of this Direction.
The Principles are set out in Paragraph 6.3:
6.3 Principles
(1)      Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)      The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)      A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, 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.
The manner in which the discretion is to be exercised is set out in paragraph 7. Informed by the principles in paragraph 6.3, the decision-maker must take into account the considerations set out in Part B of the Direction. These considerations for a visa applicant include “Primary” considerations at paragraph 11 and “Other” considerations at paragraph 12. I will refer to these considerations in detail later in these reasons.
Paragraph 8(1) provides that a visa applicant “should have no expectation that a visa application will be approved”. Paragraph 8(4) further provides that “[p]rimary considerations should generally be given greater weight than the other considerations” and paragraph 8(5) provides that “[o]ne or more primary considerations may outweigh other primary considerations”.
The primary considerations for visa applicants are set out in Part B of the Direction.
Paragraph 11(1) provides that in deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Direction then elaborates with respect to the protection of the Australian community and provides at paragraph 11.1(1) as follows:
11.1 Protection of the Australian community
(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 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 Direction further elaborates with respect to the nature and seriousness of the conduct at paragraph 11.1.1 and with respect to the risk to the Australian community at paragraph 11.1.2.
The Direction deals with the best interests of minor children at paragraph 11.2 and the expectations of the Australian community at paragraph 11.3.
Other considerations to be taken into account when deciding whether to refuse a visa are set out at paragraph 12 of the Direction.
CASE LAW
Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 considered the character test and said:
[45]… Section 501(1) provides the Minister with a discretion to refuse a visa if, on the material presented, one of the circumstances defined in s 501(6) is shown to apply. Section 501(6) acknowledges that it is a limited discretion in that it provides that a person “passes the character test” unless para (a), (b), (c), or (d) applies to that person. In so far as s 501(1) requires a visa applicant to “satisfy” the minister that he or she “passes the character test” it imposes no separate onus on that person. It is s 501(6) that governs the operation of s 501(1).
…
[49]The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501. Section 501(6) defines the limits of the discretion parliament has conferred on the Minister. As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred. Section 501(6)(c) requires the Minister to have regard to the visa applicant’s past and present criminal conduct and/or past and present general conduct and then determine as a fact whether that person is not of good character.
[50]Unless such a finding of fact is made by the Minister the visa applicant “passes the character test” and thereby satisfies the Minister under s 501(1). If the Minister finds that the visa applicant is “not of good character” that person “does not pass the character test” and accordingly does not satisfy the Minister under s 501(1). It is a finding of fact in which the meaning of the words “not of good character” is all important.
[51]The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character: see Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431–2.
[52]A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197.
[53]The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions: see Sir William Blackstone, Commentaries on the laws of England, vol 4, Ch 5; Shorter Oxford English Dictionary, p 456 — “crime”, “criminal”.
[54]Context, however, is important and may provide a broader meaning for such a term in appropriate circumstances having regard to the purpose to be served: see MarcelBeller Ltd v Hayden [1978] QB 694; [1978] 3 All ER 111.
[55]For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the minister to give due weight to that fact before concluding that a visa applicant is a person not of good character: see Baker at FCR 194–5; ALR 469; ALD 141.
[56]Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
Lee J said further:
[61]The question the Minister had to determine was whether the applicant was at the time of the decision, a person not of good character. In making that determination the Minister had to have regard to not only past conduct, general or criminal, but present or recent conduct, whether general or criminal, and to circumstances relevant to the ascertainment of qualities of character to determine whether the applicant lacked such moral qualities so that it could be found as a fact that he was a person of not good character.
[62]With regard to the criminal conduct considered, the whole of that conduct was past. There was no recent criminal conduct evidenced by a recorded conviction to which the Minister could give regard. In the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available: see Baker at FCR 194; ALR 469; ALD 141.
[63]In having regard to the criminal conduct of the applicant the Minister had to assess the extent to which the particular offences showed moral turpitude and then have regard to the absence of such conduct thereafter and the extent to which it showed that lesser weight was attachable to past offences as indicators of moral worth.
…
[77]A provision such as that contained in s 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the Minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person: see Powell at FCR 15; ALR 28 per French J.
The above-quoted passages of Lee J’s decision were referred to favourably by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10. The Full Court went on to consider the circumstance where the Minister was unsure whether a person was of good character and said:
[53]It was contended on behalf of the Minister, that no onus lies on the Minister to make any decision under s 501(6). It was argued that, in circumstances where the Minister was unsure whether a person is or is not of good character, the Minister could refuse to decide, for the purposes of s 501(6)(c), whether the applicant for the visa is or is not of good character and, in the event of such a refusal, then the applicant would not have satisfied the Minister that the applicant passes the character test, so that, in those circumstances, the Minister could, in his or her discretion, refuse to grant a visa.
[54]That argument should be rejected because it is contrary to the express terms of s 501(6). A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than by a positive finding to that effect by the Minister. If the only paragraph under consideration is para (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test.
[55]It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so, then, if that is the only matter under consideration, that person will have passed the character test.
[56]This is so notwithstanding the requirements in s 501(1) that the person concerned ‘satisfy’ the Minister that he or she passes the character test. An applicant must satisfy the Minister in relation to factual matters relevant to the Minister’s determination of whether a placitum in s 501(6) applies. In effect, s 501(6) provides a complete statement of how the person may satisfy the Minister. The effect of that statement is that, unless a placitum in s 501(6) applies, the person is to be taken as having satisfied the Minister. A placitum in s 501(6) only applies if the Minister determines positively that it does so.
[57]In the end result, the power to refuse to grant a visa in the exercise of the Minister’s discretion only arises if the Minister is satisfied of one of the matters in paras (a), (b), (c) or (d) of s 501(6). In this case, the Minister did not make a determination that the respondent was not of good character within the meaning of para (c) or any other of those paragraphs.
With respect to the matters to be taken into account so as to lawfully exercise the discretion contained in s 501, Perry J in Maioha v Minister for Immigration and Border Protection [2018] FCA 1016 summarised the applicable principles:
[24]First, it is incumbent upon a decision‐maker to give a proper, genuine, and realistic consideration to those matters which are required to be taken into account. As Flick J, for example, explained in Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 (Islam v Cash):
14. … Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision‐maker must give more than mere “lip service” to a relevant consideration: Anderson v Director‐General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:
[W]hat was required of the decision maker … was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy … The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense …
See also e.g. Ayoub v Minister for Immigration & Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [23] (the Court); and WZAQU v Minister for Immigration & Citizenship [2013] FCA 327; (2013) 233 FCR 534 (WZAQU) at [12] (Flick J).
[25]Similarly, in Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]–[49], the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. For example, an administrative decision‐maker may fall into jurisdictional error by failing to engage with the substance of an applicant’s submission if it merely records that a “submission” has been made and leaves unstated how the submission was resolved: MZYPW v Minister for Immigration & Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [19]–[20] (Flick and Jagot JJ) and at [38] (Yates J). This is not to deny that caution should be exercised before determining that there has been a failure by a decision‐maker to undertake a proper, genuine, or realistic consideration: see e.g. Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34]–[36] (the Court); Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [60] to [64] (the Court); Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007); 153 LGERA 450 at [76] (Basten JA).
CONSIDERATION
Does the applicant pass the character test?

The Minister submits that the applicant does not pass the character test, either under s 501(6)(c)(i), (ii) or s 501(d)(i) of the Act.
I will consider first whether the applicant is “not of good character” on account of past and present criminal or general conduct under s 501(6)(c). In doing so, I am guided by the factors in paragraph 5 of Section 2 of Annex A to the Direction which I have set out above.
The applicant has two criminal convictions.
The first is the summary offence of failing to produce his driver’s licence when requested for which he received a fine of $150. It is not a serious offence and cannot be relied upon as an indication that the applicant is not of good character.
The second is the aggravated offence of assaulting his domestic partner. This is a minor indictable offence. Domestic violence is a serious offence and I consider this to be a severe example of domestic violence. The applicant provided no explanation for his conduct except that he had been drinking alcohol at the time. When cross-examined about the specifics of the assault he said that he could not remember anything and that it was the alcohol that made him behave in that way. He accepts what happened but he simply cannot remember it.
The nature of the criminal conduct is domestic violence in a public place. The severity of the conduct is in the upper range because it involved repeated episodes of violence over a period of time. The first episode of three quick punches to the head inside the nightclub was severe on its own but it was made worse because the assault was continued with the forceful slap minutes later outside on the footpath despite the intervention of security officers. The applicant did not stop there but, seemingly after things had calmed down, he ran after her and launched himself towards her attempting to kick and punch her. It was only the intervention of a third person that brought the assault to an end. I agree with and adopt the sentencing remarks of the magistrate who said:
the main act particularised by the prosecution is the punch to the head outside the nightclub. That was very serious. In my view, anything short of the imposition of a term of imprisonment would not reflect the seriousness of the act of violence. Although your partner is unconcerned about this, the community does not accept such behaviour and people need to be deterred from behaving like that and thus a term of imprisonment is, in my view, the only appropriate way to deal with the matter.
I take into account that there is no evidence of repeat offending. The Magistrate accepted that the applicant had not been violent previously and has no history. The Magistrate said that if the applicant could be released into the community then he would have him supervised and would require him to do the Abuse Prevention Program. It is of concern that, despite being released from detention in October 2016, the applicant has not undertaken any rehabilitation programs. Whilst in detention he attended two health and well-being group sessions on 26 February and 4 April 2016 but no other steps towards rehabilitation appear to have been taken by the applicant.
I note that the applicant has not engaged in any criminal conduct since the assault in February 2015 for which he was convicted. His two-year good behaviour bond came to an end on 20 August 2017 and there is no suggestion of any further criminal conduct. However, the applicant is unable to point to any material positive conduct of his which may indicate character reform. I do not consider that the absence of criminal convictions indicates character reform. It is true that the applicant worked in the fruit packing sheds from October 2017 until he was detained again on 7 June 2018 and that his employer gave him a positive written reference. However, there is very little other evidence of any positive participation in the community except from his wife and her family who gave evidence that he is a good family man loved by his son and wife and respected by his sister in law and mother in law.
In considering whether the applicant is not of good character, all of the relevant circumstances of the applicant’s particular case are to be taken into account to obtain a complete picture of the applicant’s character. This includes the conduct of the applicant whilst in detention and the conduct of the applicant during the hearing.
The conduct of the applicant in detention outlined above does not reflect favourably on him. His poor behaviour was the subject of regular reports. He became extremely aggressive with client service officers in the first reported incident after only about one month of arriving in detention for the first time. Upon his return to detention in 2015 he became involved with the serious disturbance in the dining hall on 27 July 2015. Four months later in November 2015 he abused and threatened another detainee and had to be physically moved away from him. His threatening and grotesque conduct in February 2016 suggests either he was suffering from a mental illness or he was just showing complete disregard for the authorities who were looking after him.
With respect to rehabilitation and professional treatment, the documentary evidence shows that the applicant:
(a)attended three sessions with a psychologist in 2015 while in detention but no formal report was provided;
(b)attended appointments with a mental health nurse on three occasions in 2016 and on two of those occasions the applicant declined ongoing mental health support;
(c)attended to group sessions with a counsellor but those records lack detail; and
(d)declined mental health support as recently as June 2018.
The applicant has not otherwise sought or obtained professional treatment to address any mental health issues or to assist him to adjust to life in the Australian community. When this was put to the applicant in cross examination, he said that the best psychologist is his wife and son and that he has learnt from the people around him, namely his wife and her family. He said that he was more of a calm person now and had learnt his responsibilities as a husband and a father.
I must say something about the applicant’s conduct during the hearing. The applicant gave his evidence by video link from detention in Western Australia but he was clearly visible and able to be heard at all times during the hearing. Regularly during cross examination, the applicant would smile or even laugh at inappropriate moments. I considered this behaviour to be strange if not disrespectful but I was willing to give the applicant the benefit of the doubt until he was asked by counsel for the respondent whether he considered that the sentencing remarks of the Magistrate were funny. The response from the applicant was revealing because instead of apologising for what appeared on its face to be inappropriate and disrespectful conduct the applicant sought to justify his conduct by saying that he was laughing because the Magistrate was using words to make him look bad. This suggests to me that the applicant has little or no insight into the appalling nature of the domestic violence he perpetrated upon his wife and that he is not genuinely remorseful. I have seen the CCTV footage and the Magistrate’s description of the events is fair and accurate. It is not a question of the Magistrate using words to make him look bad when the CCTV footage speaks for itself.
I consider the applicant to be a person of ill repute by reason of his past criminal conduct but I acknowledge, adopting the words of Lee J in the Godley decision at first instance, that such a person may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. However, an objective examination of the applicant does not reveal a reformed person or a person of good character. The applicant continued to behave badly in detention even after he was given a suspended sentence by the Magistrate on 20 August 2015. He has shown a continuing disregard for the authorities whilst in detention and for the Immigration Department whilst outside of detention evidenced by the periods in which he remained unlawfully in the community due to the expiration of his bridging visas.
I note that the Direction provides that in order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of good character. The Direction goes on to say that, however, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent behaviour. I consider that the domestic violence perpetrated by the applicant does indicate a lack of enduring moral quality and that the domestic violence is not outweighed by the applicant’s behaviour since then. I do give weight to the fact that there is no recent criminal conduct but there is no positive evidence of rehabilitation from a reliable source and I am not convinced by all of the circumstances that the applicant is a reformed person. Nor am I convinced that he has shown genuine remorse.
I am conscious of the reasons of the Full Court of the Federal Court in the Godley appeal decision in that if I am unsure whether the applicant is or is not of good character and therefore unable to reach a positive decision that he is not of good character then the applicant will have passed the character test. In all of the circumstances described above and taking into account the applicant’s past criminal conduct and his past and present general conduct pursuant to s 501(6)(c) of the Act, I have reached the requisite level of satisfaction that the applicant is not of good character and therefore does not pass the character test.
Next I consider whether there is a risk that the applicant would engage in criminal conduct in the event that he were allowed to remain in Australia. The risk of that conduct must be more than a minimal or remote chance. It is not sufficient to find that the applicant has engaged in criminal conduct in the past.
The wife of the applicant has given evidence that there is no risk of further domestic violence. She said that there was no violence before or after the incident in question. However, I do not consider that her opinion is determinative of the issue. She has lied on his behalf before. When the police arrived on the subject night she told the constable that nothing had happened and that she had not been assaulted. In evidence, the wife said that she did that so as to avoid her partner getting into trouble. She also told the constable that she did not live with the applicant which is inconsistent with her written statement in which she says that they were living together permanently by late June or early July 2013. She also said in her written statement that she continually tried to have the intervention order against him lifted and that she did not want him to be charged.
I must make an objective analysis of the risk of further domestic violence based on all the evidence available to me. The applicant has provided no reports from professionals who have experience in this area. As I have already found, the applicant has not participated in any program of rehabilitation and his conduct during the hearing indicated a lack of insight into the seriousness of his conduct. On the other hand, the evidence from the wife, the mother-in-law and the sister-in-law is that he is a loving husband and father and that the violence perpetrated on the night in question is completely out of character.
In all of the circumstances and particularly noting that the Magistrate considered some form of rehabilitative program was necessary but that no such program has been undertaken, I am of the view that there is more than a minimal or remote chance that the applicant if allowed to remain in Australia would engage in further criminal conduct. Accordingly, I consider for the purposes of section 501(6)(d) that there is a risk that the applicant would engage in criminal conduct if allowed to remain in Australia.
The result is that the applicant does not pass the character test because I have reached the requisite level of satisfaction under both s 501(6)(c) and s 501(6)(d) of the Act. Consequently, the discretion in s 501(1) is enlivened so I now turn to consider the discretionary factors in the Direction so as to determine whether I should exercise the discretion to refuse to grant the visa.
Should the discretion be exercised to refuse the visa?
The primary consideration of protection of the Australian community requires a consideration of the nature and seriousness of the offending conduct and the risk of further offending.
The offending conduct
I have already concluded that the assault involving domestic violence perpetrated by the applicant should be viewed very seriously. The sentencing Magistrate said that “anything short of a term of imprisonment would not reflect the seriousness of the act of violence”. I have had regard to the principle in paragraph 11.1.1(1)(d) of Part B of the Direction that the conduct that forms the basis for a finding that the applicant is not of good character under s 501(6)(c) is considered to be serious. I will not repeat but I do rely upon my reasons above for finding that the applicant is not of good character.
The risk of further offending
In considering the risk of further offending I have had regard to the principle that Australia has a low tolerance of any criminal conduct by visa applicants and that there is no expectation that such people should be allowed to come to, or remain permanently in, Australia.
Domestic violence is abhorrent and the nature of the harm should the applicant engage in further domestic violence is unacceptable.
In order to properly consider the likelihood of the applicant engaging in further criminal conduct as required by paragraph 11.1.2(3)(b) of the Direction I must take into account:
(a)information and evidence from independent and authoritative sources on the likelihood of the applicant re-offending; and
(b)evidence of any rehabilitation achieved by the time of my decision, giving weight to time spent in the community since the most recent offence; and
(c)the duration of the intended stay in Australia.
As noted above, I have none of the required information or evidence as to the likelihood of re-offending. No such evidence was presented to me. The wife and her family are neither independent nor authoritative.
As for evidence of rehabilitation, I have very little to go on except for the evidence from his wife and her family and the lack of any further convictions. I take into account that despite what was said by the Magistrate, the applicant has undertaken no rehabilitative course since being released from detention in October 2016.
I do give weight to the time spent in the community since the offence which comprises about 20 months. I note that the applicant married his wife in April 2017 and that he is a caring father to their child. It is of concern to me that the domestic violence took place about 5 months after their baby was born and at a time when the applicant would have known that such violence would result in him either being put back into detention or in prison. It is difficult to reconcile that with the evidence from the wife and family that he has always been a loving and devoted father. It is also difficult to reconcile the evidence from his wife’s written statement that they were living together permanently from June or early July 2013 with the police constable’s affidavit that his wife told her that they did not live together but that they had a child.
I consider that the risk of further offending is a factor that weighs against the applicant for the reasons set out immediately above and where I deal with the issue of risk in the context of s 501(6)(d). In particular I have had regard to the nature of the violent assault perpetrated on his fiancée and the mother of their 6 month old baby and that there is no evidence of rehabilitation from reliable sources. His wife’s evidence that he poses no risk is not reliable.
The best interests of the child
In making my decision I must make a determination as to what is, or is not, in the best interests of the child, which is a primary consideration with respect to a visa applicant.
The child is now 4 years old and was born about 6 months before the applicant assaulted his wife in February 2015. 5 weeks after the assault the applicant was placed back into detention where he remained until October 2016, by which time the child was 2 years old. The applicant, his wife and child lived together for the 20 months from October 2016 to June 2018.
I accept that at least from October 2016 the applicant has been a loving and devoted father to his child and that he is likely to play a positive role in the future. It is relevant that there have been periods of absence due to the applicant being in detention. The child was only 6 months old when the offence was committed so it would be difficult to assess the impact on the child at the time but I do consider there to be a negative impact on any child brought up in a relationship where there has been or may in the future be domestic violence. I also note that his wife has support from her mother and her sister but there is no evidence that these persons fulfil a parental role with respect to the child.
I conclude that this is a factor that weighs in favour of the applicant.
Expectations of the Australian Community
In making my decision I must give primary consideration to the expectations of the Australian community.
The applicant is expected to obey the law while in Australia. He has not. I have identified serious concerns with respect to the applicant’s character which stem primarily from the domestic violence but which are compounded by the conduct of the applicant in detention and the entirely inappropriate and disrespectful smiling and laughing during the hearing which causes me to doubt whether he is genuinely remorseful.
I note from paragraph 11.3(1) that visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. I consider this to be one of those cases.
Other considerations
Other considerations are to be taken into account where relevant, namely international non-refoulement obligations, impact on family members, victims and on Australian business interests.
International non-refoulement obligations
Paragraph 12 of the Direction mandates consideration of international non-refoulement obligations if they are relevant. However, paragraph 12.1(4) qualifies that mandatory consideration by saying that it is unnecessary to determine whether non-refoulement obligations are owed where:
(a)a non-citizen makes claims which may give rise to non-refoulement obligations; and
(b)the non-citizen is able to make a valid application for another visa.
In this case the applicant made an application for a bridging visa and was able to make, and did in fact make, a valid application for another visa, namely a protection visa. Consequently, pursuant to paragraph 12.1(4) it is unnecessary to determine whether non-refoulement obligations are owed to the applicant. This makes sense in this case because the question of non-refoulement obligations has already been considered by the delegate to the Minister who concluded that Australia does not owe protection obligations to him under the Act. That decision has been affirmed by the Immigration Assessment Authority and a subsequent judicial review application is due to be heard in the Federal Circuit Court on 17 September 2018. The respondent is entitled to rely on that finding because administrative decisions are presumed to be valid unless and until the contrary is proven: Ousley v The Queen (1997) 192 CLR 69 at 130-131.

In any event, I have considered the reasoning of the delegate in the Protection Visa Decision Record of 7 February 2017 and I am satisfied that the applicant’s protection claims were properly considered. I accept the finding of the delegate that the applicant is not owed protection obligations and, if I were required to consider non-refoulement obligations, I would find on the evidence before the Tribunal that no non-refoulement obligations are owed to the applicant.
The applicant claims to be stateless and not a citizen of Iran. No evidence was provided in the applicant’s written statement and oral evidence to support this claim. The delegate of the Minister considered this claim in detail in the Protection Visa Decision Record of 7 February 2017. I accept the finding made by the delegate of the Minister that the applicant is an Iranian citizen.
The applicant claims that the Government of Iran would harm him. No evidence was provided in the applicant’s written statement and oral evidence to support this claim. I have considered and rejected this claim of harm as another consideration to be taken into account (separately from a consideration of non-refoulement obligations). Further, I note that the delegate of the Minister considered this claim in detail in the Protection Visa Decision Record of 7 February 2017. I accept the finding made by the delegate of the Minister that the applicant does not face a real chance of serious harm or a real risk of suffering significant harm in his home region in Iran.
The applicant relies on BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 to argue that a consideration of non-refoulement obligations is required.
I consider that the BCR16 decision can be distinguished because that case involved a decision by the Assistant Minister and therefore the Direction did not apply. Further, the applicant in this case has actually applied for a protection visa and the question of non-refoulement obligations has been determined.
McKerracher J in BNVM vMinister for Immigration and Border Protection [2018] FCA 131 considered the BCR16 decision and distinguished it as follows:
[53] This matter is distinguishable from BCR16 as:
(a) First, the question of the applicant applying for a protection visa was not a matter of speculation. The applicant had applied for a protection visa. That protection visa application had been refused by a delegate on the basis that the delegate was not satisfied that protection obligations were owed to the applicant and the applicant had applied for (separate) merits review in the migration division of the Tribunal.
(b) Secondly, the Tribunal specifically noted that there was ‘little evidence before the Tribunal that Australia owes any obligations in this regard to [the applicant] and no evidence to suggest he cannot be returned to India due, for example, to health or any other legitimate concerns’ (at [87]). In fact, as the applicant had been refused a protection visa the evidence before the Tribunal suggested that non-refoulement obligations were not owed.
[54] For these reasons the decision of the Tribunal is not affected by the same error as identified in BCR16.
Even if non-refoulement obligations were owed to the applicant then on the material provided I would give this factor very little weight.
Impact on family members
Based on the evidence from the wife I accept that this is a factor which weighs in favour of the applicant.
Impact on victims
The wife’s evidence is that the domestic violence perpetrated against her had no negative impact so I consider that this is not a relevant consideration.
Impact on Australian business interests
This is not a relevant consideration.
Conclusion as to the discretion
Having taking into account the primary and the other considerations by giving them a proper, genuine and realistic consideration, I have decided to exercise the discretion in s 501(1) of the Act to refuse to grant the visa to the applicant. In making that decision I am informed by the principles in paragraph 6.3 of the Direction which apply to the commission of serious and violent crime in Australia such as the domestic violence perpetrated by the applicant in this case. Australia has a low tolerance of the serious crime of domestic violence. The applicant should have no expectation that having assaulted his wife and conducting himself as set out above that he should be allowed to remain in Australia.
The primary considerations of protection of the Australian community and the expectations of the Australian community weigh heavily in favour of exercising the discretion to refuse the visa. They significantly outweigh the interests of the applicant’s child and his wife.
DECISION
The Tribunal affirms the decision under review.

113. I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten‑Jones

.................................[SGD]................................
Associate
Dated: 29 August 2018

Date of hearing: 3 and 8 August 2018

Advocate for the Applicant:
Ms E Rutherford
Camatta Lempens Lawyers

Advocate for the Respondent: Ms B Griffin
Australian Government Solicitor

Date of hearing:	3 and 8 August 2018
Advocate for the Applicant:	Ms E Rutherford Camatta Lempens Lawyers
Advocate for the Respondent:	Ms B Griffin Australian Government Solicitor