ZXPT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2923
•19 August 2024
ZXPT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2923 (19 August 2024)
Division: GENERAL DIVISION
2024/3384File Number(s):
Re:ZXPT
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President A Younes
Date: 19 August 2024
Place:Sydney
The Tribunal affirms the decision under review.
....................................[SGD]....................................
Deputy President A Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – Ministerial Direction No. 110 – nature and seriousness of offending conduct – protection of the Australian community – conduct engaged in family violence – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
CGX20 V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCAFC 69
FYBR V MINISTER FOR HOME AFFAIRS [2020] HCATRANS 56
FYBR V MINISTER FOR HOME AFFAIRS [2019] FCA 500
FYBR V MINISTER FOR HOME AFFAIRS [2019] FCAFC 185
HOWELLS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS (2004) 139 FCR 580
HZCP V MINSTER FOR IMMIGRATION AND BORDER PROTECTION [2018] FCA 1803
JAGROOP V MINISTER FOR IMMIGRATION AND BORDER PROTECTION (2016) 241 FCR 461
MINISTER FOR IMMIGRATION AND BORDER PROTECTION V LESIANAWAI (2014) 227 FCR 562
PLAINTIFF M1/2021 V MINISTER FOR HOME AFFAIRS [2022] HCA 17
SECONDARY MATERIALS
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President A Younes
19 August 2024
BACKGROUND
The Applicant is a national of Nepal, born in 1987.[1] He arrived in Australia in February 2018, as the holder of a student visa, subclass 500,[2] which was cancelled on 29 January 2020, for failure to enrol in a course.[3] Following the cancellation, the Applicant remained in Australia as an unlawful non-citizen.[4]
[1] Ex 6, 78.
[2] Ex 2.
[3] Ex 6, 102-105.
[4] Ex 6, 115.
The Applicant has an extensive history of offending. He has been convicted of a number of offences such as dishonestly obtaining property by deception, disposing of property from theft, and furnishing false information/statement of a licensing body. On 16 March 2023, the Applicant pleaded guilty to 4 counts of dealing with identity information to commit indictable offences and 2 counts of dishonestly obtaining financial advantage. He was sentenced to a 16-month aggregate sentence.[5] However, on 31 July 2023, the Downing Centre District Court varied that sentence to 13 months imprisonment.[6]
[5] Ex 6, 31-36.
[6] Ex 6, 32.
On 29 May 2024, a delegate of the Minister refused the Applicant's application for a Bridging E (Class WE) visa (‘BVE’) under section 501(1) of the Migration Act 1958 (the Act), on the basis of the Applicant not meeting the character test.[7]
[7] Ex 6, 10-30.
The Applicant applied to the Administrative Appeals Tribunal (the Tribunal/AAT) for review of the delegate’s decision.
LEGISLATION
Under section 501(1) of the Act, the Minister may refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’.
Section 501(7) of the Act provides:
(7)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; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
MINISTERIAL DIRECTION NO. 110
The Respondent is empowered by section 499 of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[8]
[8] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 7 June 2024, the Respondent signed Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110). The Direction commenced on 21 June 2024 and revoked the previous Direction 99.
The preamble in Direction 110 sets out the objectives[9] and the overarching principles[10] that provide the framework within which decision-makers should approach their task under sections 501 and 501CA.
[9] Direction 110 [5.1].
[10] Direction 110 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as Primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9(1) of the Direction identifies the non-exhaustive list of Other considerations:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.”
Paragraph 7(2) provides that primary consideration 8.1 “should be given greater weight than other primary considerations.”
Paragraph 7(3) provides that one or more primary considerations “may outweigh other primary considerations”.
The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[11] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in determining individual cases.[12] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather it is the application by a decision-maker to the evidence and material in an individual case.[13]
[11] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[12] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[13] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Respondent’s Statement of Facts, Issues, and Contentions (SFIC), filed on 17 July 2024 (Exhibit 1);
·The Applicant’s submissions, filed on 3 July 2024 (Exhibit 2);
·The Applicant’s reply, filed on 25 July 2024 (Exhibit 3);
·Respondent’s Tender Bundle, filed on 17 July 2024 (Exhibit 4);
·Letter from Sunapati Rural Municipality, filed on 25 July 2024 (Exhibit 5);
·G-Documents, filed on 12 June 2024 (Exhibit 6); and
·Supplementary Tender Bundle, filed on 6 August 2024 during course of the hearing (Exhibit 7).
The Applicant and a witness gave evidence in the course of the hearing.
FINDINGS AND REASONS
The character test is defined in section 501(6) of the Act. The character test is generally concerned with the protection of the Australian community from the risk of harm.
A person does not pass the character test only if one of the paragraphs in section 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under section 501(6)(a) because the Applicant has a 'substantial criminal record' pursuant to section 501(7)(c) in that he has been sentenced to a term of imprisonment of 12 months or more.
It is not in dispute that the Applicant does not meet the character test. On 16 March 2023, the Applicant pleaded guilty to 4 counts of dealing with identity information to commit indictable offences and 2 counts of dishonestly obtaining financial advantage. He was sentenced to a 16-month aggregate sentence.[14] However, on 31 July 2023, the Downing Centre District Court varied that sentence to 13 months imprisonment.[15]
[14] Ex 6, 31-36.
[15] Ex 6, 32.
As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of section 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
The issue before the Tribunal is whether the Tribunal should exercise its discretion, taking into account the matters articulated in the Direction.
THE PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should:
(1)…keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)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.[16]
The seriousness of the Applicant’s conduct
[16] Direction 110, [8.1].
The Applicant’s criminal history
In the relation to the nature and seriousness of conduct, Direction 110 sets out the types of conduct that may be considered very serious, including violent and sexual crimes, crimes against women and children, acts of family violence, and crimes committed against vulnerable persons such as the elderly and disabled.[17] However, the Direction does not limit the range of conduct that may be considered to be very serious or serious; the Direction at paragraphs 8.1.1(1)(a) and (b) clearly states “without limiting the range of conduct” that may be considered very serious or serious, indicating that the list of offences is not exhaustive.
[17] Direction 110 [8.1.1(1)].
The Applicant’s offending history is as follows:[18]
·On 25 May 2021, the Applicant was convicted of 5 counts of making false documents to obtain property, 7 counts of dishonestly obtaining property by deception, 11 counts of using false documents to obtain property, 4 counts of disposing property from theft, 3 counts of giving a false name, 4 counts of possessing identity information to commit indictable offences, 5 counts of furnishing false information/statement to a licencing body, 1 count of receive/dispose of stolen property and 1 count of failing to appear in accordance with bail acknowledgement. The Applicant was sentenced to 4 months imprisonment.
·On 4 August 2021, the Applicant was convicted of 1 count of dishonestly obtaining property by deception and sentenced to a 12-month intensive correction order (ICO).
·On 10 November 2022, the Applicant was convicted of 1 count of using a false document to obtain property, 1 count of disposing property - theft, 1 count of making a false document to obtain property, and 1 count of dishonestly obtaining property by deception. He was sentenced to 3 months imprisonment.
·On 16 March 2023, the Applicant pleaded guilty to 4 counts of dealing with identity information to commit indictable offences and 2 counts of dishonestly obtaining financial advantage and sentenced to a 16-month aggregate sentence. On 31 July 2023, the Downing Centre District Court varied that sentence to 13 months imprisonment.
[18] Ex 6, 31-36.
In his statement[19] and in oral evidence, the Applicant indicated that he had a gambling addiction and over the years had lost about AU$200,000. He gave evidence that his gambling was out of control but he did not get any assistance. He said he kept the gambling addiction a secret from his family but now his mother has become aware of it. He stated that he became homeless and people helped him with food. He said he stopped studying which led to his student visa being cancelled, but at the time he did not know of the visa cancellation as he did not have a telephone. He said everything was a mess.
[19] Ex 2.
The Applicant claimed that when he asked people for money, his mother transferred funds into their accounts but the transfers went into wrong bank accounts. He expressed remorse for his conduct and emphasised that he would not gamble again. He stated that if allowed to remain and work in Australia, he would pay back the victims. He mentioned that he has already paid back one victim [SK].[20]
[20] Ex 2, and in oral evidence.
The Respondent contended and the Tribunal is persuaded that no gambling addiction can sufficiently justify the premeditative nature of the Applicant's repeated offending on approximately 12 victims.
Although the Applicant accepts the convictions, he does not agree with some of the facts in relation to the 4 counts of dealing with identity information to commit indictable offences and 2 counts of dishonestly obtaining financial advantage, for which he was sentenced to a 16-month aggregate sentence, which was varied on 31 July 2023, by the Downing Centre District Court to 13 months imprisonment.
The relevant NSW Police Facts Sheet[21] in regard to the above offending indicates that, on 17 August 2022, the Applicant called a male [‘MG’] whose contact details he obtained from a post that he commented on within a Facebook group, which assists migrants in Australia to transfer money to Nepal. The Applicant identified himself as [‘AT’]. He offered to transfer money to MG’s parents in Nepal through his own mother, to which MG agreed. On 22 August 2022, MG transferred AU$2,210.00 into the Applicant’s bank account and provided him with a copy of his NSW drivers licence with his date of birth being redacted.
[21] Ex 6, 38-42.
On 2 September 2022, a female named [‘SB’], contacted the Applicant. She had seen his contact details on a mobile application called Kaamkotha, which is used to transfer money from Australia to Nepal for the community of Nepalese migrants in Sydney. The Applicant identified himself as MG and offered to transfer money to an overseas bank account of SB’s parents in Nepal for a discounted exchange rate. That same day, SB transferred AU$4,900.00 into a bank account provided by the Applicant and he advised her that the money would take several days for the transfer to occur. Later and on several occasions SB contacted the Applicant to enquire about the bank transfer as her parents had yet to receive the funds. He told her he had not received any money and advised her to speak to her bank. She continued to call him to follow up on the outstanding transfer and he continued to reassure her that he would transfer the funds. SB was eventually unable to contact the Applicant as he blocked her phone number.
On 19 September 2022, a male named [‘BG’] contacted the Applicant after getting his contact details from a friend through the Kaamkotha application. The Applicant told BG that he was able to transfer money into his overseas bank account for a discounted exchange rate on his behalf. The Applicant provided his bank details using the name MG. BG transferred AU$12,000.00 into a bank account provided by the Applicant. Over a period of several days, BG contacted the Applicant and enquired about his funds. The Applicant assured him that the transfer would occur, but it never did. The Applicant later blocked BG’s calls. BG then investigated the Applicant on Facebook in the hope to contact him. However, BG got in contact with the actual person, MG who informed him that he had previously sent money overseas via a different person that used the same contact number as the Applicant.
On 22 September 2022, BG and SB attended MG’s property in order to confront him about the loss of their money, believing him to be the Applicant. They then discovered that the Applicant had been using the name of MG and used the same telephone number for all the three victims. BG and MG contacted the Applicant and organised to meet with him to arrange a transfer of cash. On the evening of 23 September 2022, BG and MG confronted the Applicant and questioned him. The Applicant initially denied the accusations however, eventually admitted to it which was recorded. Later the police were contacted. The Applicant attempted to flee the scene, however several of the males in attendance grabbed him and waited for the police to arrive. The Applicant was interviewed by the police and admitted that he received AU$12,000.00 and that he did not transfer the funds, which he said he gambled. He also admitted that he had contacted one of the victims using another name. He was arrested and taken the police station for further interviewing. During the interview, he denied the allegations and changed his story from what he had initially stated to the police at the scene of the arrest, claiming that he had paid back all of the victims money apart from SB and that MG was also his own name.
In his statement to the Tribunal filed on 25 July 2024,[22] the Applicant presented his “side of the story which is correct”. He stated:
Even on my guilty plea, I have mentioned that I am pleading guilty because it is convenient for me to finalise my case at the earliest and told the judge that I have not committed the crimes as mentioned on my charge sheet. My solicitor [MF] had advised me multiple times to be remorseful for your crimes and you will get a lesser sentence but I disagreed with her and was prepared to get a tougher sentence because I knew I had no intention to defraud [BG] of his money and there was an attempt to pay him from my mother even before I was arrested by the police. But unfortunately, the money was deposited in the wrong account for which I sincerely apologise and this could easily have been fixed. Since, I went to the prison, I could not contact anyone outside to fix this and decided to plead guilty.[23]
[22] Ex 3.
[23] Ex 3, 4th paragraph.
The Applicant provided a letter from the Sunapati Rural Municipality, dated 23 July 2024, stating that the Applicant has a birth name of [MG].[24] In the course of the hearing, this letter was discussed, including concerns about its authenticity and/or the accuracy the information contained in the document. The Applicant gave evidence that MG was a ‘secret’ birth name that is not commonly disclosed, and is only used in limited circumstances. He said that is consistent with his Nepalese culture.
[24] Ex 5.
The Tribunal referred to the application for a protection visa (PV) lodged by the Applicant on 17 September 2021[25] where in response to the question asking “Has this applicant ever been known by or used any other names, dates of birth or gender? Other names include alternative spellings, patronymic names, maiden names, clan or tribal names.”[26], the Applicant replied “No”. The Tribunal expressed concerns about the non-disclosure of the claimed name of MG. The Tribunal is of the view that there is merit to the Respondent’s submissions that the Applicant has made up this version about his birth name of MG to support his assertions that MG was also his name. There is also a death certificate showing that his grandfather had the surname [G].[27] However given the nature of the Applicant’s offending including fraudulent transaction receipts and in consideration of the evidence as a whole, the Tribunal is not satisfied that the letter from the Sunapati Rural Municipality contains accurate information. Furthermore, his explanation does not explain the use of the false identity of AT.
[25] Ex 6, 46-76.
[26] Ex 6, 47.
[27] Ex 4, 19.
Importantly, in the current circumstances, the Tribunal cannot look behind the relevant conviction. In this regard and in oral submissions to the Tribunal, the Respondent referred to the decision of HZCP v MIBP,[28] where the Court expressed the following principles:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[29]
[28] HZCP v Minster for Immigration and Border Protection [2018] FCA 1803.
[29] HZCP v Minster for Immigration and Border Protection [2018] FCA 1803, [78].
It is evident that in certain circumstances, although it is possible to impugn the essential facts underlying the conviction, this is not so if the conviction is the foundation for the exercise of power by the decision-maker, as is the case in this instance. The Tribunal explained to the Applicant that it is not within the Tribunal’s powers in such circumstances to review or reach different findings to those made by the Court. The Applicant reiterated that his lawyer advised him to plead guilty.
The Respondent contended that the Applicant’s offending is serious, which the Tribunal accepts.
The evidence before the Tribunal indicates that the Applicant’s criminal offending is serious because it involved deceiving innocent people by intentionally misleading them to make money transfers for his own benefit - to fund his gambling addiction. He has deprived innocent people of their assets, and as such likely to have caused them financial loss/hardship, as well as emotional and psychological distress. He has acted in a manner that demonstrates disregard for laws and the legitimate rights of others.
The Applicant’s offending is not isolated but is a trend of deception and an increase in frequency. The frequency of these offences, occurring on multiple occasions adds to the serious nature of these offences. The increasing frequency and seriousness in the Applicant's offending is demonstrated by the fact that from 2020 to 2021, the Applicant used false identities and fraudulent transaction receipts to make fraudulent purchases of electronics which he would then pawn.
The seriousness of the Applicant’s offending is also reflected in the fact that he received a custodial sentence which is the last resort in the sentencing hierarchy. The Applicant received 13 months imprisonment for his offending for which he was convicted in March 2023. He was also sentenced to various terms of imprisonment varying from three to four months for similar related offences. The Tribunal is satisfied that the custodial sentences indicate that the Court viewed the Applicant’s conduct as being very serious.
On balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily in favour of refusal.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view 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 risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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 on the risk of the non-citizen reoffending; and
ii.evidence of 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).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.[30]
[30] Direction 110, [8.1.2].
In his statement,[31] the Applicant noted that he takes “full responsibility for my actions and ashamed of myself. I am really sorry to all the victims who have to suffer because of my actions. I used to be a person of integrity and moral high ground. I come from a good family background and I was teacher for almost 6 years. I was never a criminal minded person, otherwise wouldn’t have been homeless for one and half years. But the situation got better of me and I went down the wrong path. I should’ve told everything I was going through to my family back then but did not dare to tell them anything because of the incident in 2019. Now, I have learned to express myself and share my hardships with friends and family. I now have full support from my family… But I fully accept that I did commit crimes between 20th November 2020 and 4th March 2021 for which I was sentenced at three different occasions, first on 25th May 2021, 4th August 2021, and 10th November 2022. I am really ashamed of my actions and I am sorry for the victims of my crimes. I have paid back to one of the victims called [SK] and I will pay back to all my victims if I become successful in getting my protection visa, as I will be able to work only in this scenario. Even though there is no such orders from the court to pay the victims back, I will pay them back once I will be able to work legally.”
[31] Ex 2.
The Applicant claimed that he would not commit any further offences because he has learnt his lesson. He has provided certificates[32] to demonstrate that he has undertaken some courses. He has completed online courses including Interpersonal Communication, Conflict Resolution Techniques, Anger Management Techniques, Effective Communication Skills, Workplace Drug Use, How to Improve Your Concentration, and Dialectical Behaviour and Resilience Based Program. The applicant gave evidence that he commenced one on one counselling about one month ago.
[32] Ex 6, 125-131.
There is before the Tribunal a Sentencing Assessment Report, dated 10 September 2022.[33] The report concluded that the Applicant is at a medium to low risk of reoffending. As previously mentioned, on 10 November 2022, the Applicant was convicted of 1 count of using a false document to obtain property, 1 count of disposing property - theft, 1 count of making a false document to obtain property, and 1 count of dishonestly obtaining property by deception. He was sentenced to 3 months imprisonment. Despite the custodial sentence, he reoffended; on 16 March 2023, the Applicant pleaded guilty to 4 counts of dealing with identity information to commit indictable offences and 2 counts of dishonestly obtaining financial advantage and sentenced to a 16-month aggregate sentence. On 31 July 2023, the Downing Centre District Court varied that sentence to 13 months imprisonment.
[33] Ex 4, 101-104.
The report was discussed in the course of the hearing. The Applicant did re-offend following the report, supporting the conclusions of the report. The Tribunal gives some weight to that conclusion.
The Tribunal acknowledges that the Applicant has completed a number of courses and is involved in personal counselling. Although, the courses may not be directly related to gambling, the Tribunal is satisfied that they relate to personal growth which is ultimately of benefit. The Tribunal gives some weight to those courses and the counselling. The Tribunal however accepts the Respondent’s submissions that the information available does not suggest the Applicant has rehabilitated. The Tribunal accepts that the Applicant has shown a degree of remorse but the Tribunal is guarded to conclude that this means that he will not re-offend.
Relevantly and as raised by the Respondent, a bridging visa, if granted, would expire after any legal proceedings invoked by the Applicant have been finalised or exhausted with respect to the PV application. Therefore, the time the Applicant spends in the community on a BVE would not be unlimited or permanent. However, this aspect does not give comfort to the Tribunal or the Australian community in circumstances given the Applicant’s offending history, including re-offending after being released.
Direction 110 stipulates that decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that the safety of the Australian community is the highest priority of the Australian government.[34]
[34] Direction 110 [5.2(2)].
Having regard to the cumulative evidence, and given the frequency and seriousness of the offending, the Tribunal is satisfied that there remains a moderate to a low risk that the Applicant would re-offend. Given the seriousness, any risk is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily in favour of refusal.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[35]
[35] Direction 110 [8.2(1)].
There is no evidence in this case that the Applicant’s conduct relates to family violence.
The Tribunal gives this consideration neutral weight.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s 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.
The Applicant identified a couple of relatives, including an uncle in Australia, but he was not sure of their immigration status. He stated that they do not know of his offending. He has however friends including a Mr M who is an Australian citizen. Mr M provided a statement and he gave evidence expressing his support. Mr M stated that he would be ‘devastated’ if the Applicant were to return to Nepal.
The Applicant has been in Australia for about 6 years. He has provided evidence of his friendships and social links with Australian citizens and/or Australian permanent residents. This includes two statutory declarations from his friends [LG] and [GS] attesting to their willingness to support the Applicant with food and accommodation in the event of his release from detention.[36]
[36] Ex 6, 133-134.
The Tribunal is satisfied that the Applicant’s ties to Australia are limited. Moreover, he did not arrive in Australia as a young child, but as an adult who began offending within three years of his arrival.
As such and on balance, the Tribunal gives this consideration limited weight against refusal of the visa.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[37]
[37] Direction 110 [8.4(1)].
The Applicant does not have any children of his own, and there is no evidence of any minor child being impacted.
The Tribunal gives this consideration neutral weight.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[38]
[38] Direction 110 [8.5(3)].
Moreover, the Direction states that this consideration is about the “expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.”[39]
[39] Direction 110 [8.5(4)].
The Tribunal observes that there is judicial support for this; in the Federal Court of Australia’s decision in FYBR.[40] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[41] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases…[42]
[40] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[41] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[42] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 of Direction 65 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[43] that it is not for the decision-maker to make his or her own assessment of the community expectations,[44] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[45] In essence, the judgment is authority for the proposition that it is not the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[46]
[43] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[44] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[45] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[46] FYBR v Minister for Home Affairs [2020] HCATrans 56.
The Tribunal accepts the Respondent’s submissions that the Applicant's criminal conduct is inconsistent with the values and norms of the Australian community such that one would expect his BVE to be refused, and that this is particularly so where the Applicant was the holder of a temporary visa.
The Tribunal gives this consideration significant weight in favour of refusal.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of a specific type of harm.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to 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 Direction divides the considerations to be applied in this paragraph into two sections:
(1)non-citizens covered by a protection finding; and
(2)non-citizens not covered by a protection finding.
The Applicant confirmed during the hearing that he applied for a PV in September 2021,[47] which was refused by a delegate. He gave evidence that he has sought review of that decision and the matter is currently before the Migration and Refugee Division (MRD) of the AAT. The Applicant stated that he had a hearing early this year about that review with the MRD but he has not heard of the outcome. The Tribunal explained to the Applicant that unless the delegate’s decision is set aside by the MRD, the decision of the delegate remains to be a lawful decision, which means that there has not been a protection finding, and as such there arguably is no breach of any non-refoulement obligations.
[47] Ex 6, 46-76.
In summary, in the application for the PV, the Applicant claimed that he feared returning to Nepal on the basis of being harmed by the Maoists who threatened to kill his father. He claimed that the Maoists had threatened his family.[48] The delegate was not satisfied that the Applicant met the relevant criteria for the grant of the visa.[49]
[48] Ex 6, 68.
[49] Ex 6, 239-268.
The Respondent contended, and the Tribunal accepts that in these circumstances the Tribunal should rely on the delegate's findings and conclude that Australia does not owe the Applicant non-refoulement obligations. The Tribunal accepts that it is not appropriate for the Tribunal to determine the Applicant's protection claims here, as he has applied for a PV, which is yet to be determined by the MRD. This is consistent with the High Court's approach in Plaintiff M1/2021 v Minister for Home Affairs.[50]. The Tribunal is satisfied that as the PV application and review processes have been engaged, but not yet finalised, it is appropriate for the Tribunal not to assess the claims but to allow the review process to take its course.
[50] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
In terms of legal consequences of a decision to affirm the BVE refusal, the Applicant would remain in immigration detention until the finalisation of his protection claims. Under section 198(6) of the Act, the obligation to remove the Applicant would not arise until the PV application is finally determined. As such, affirming the decision to refuse the BVE would not directly result in the removal of the Applicant to Nepal.
In those circumstances, the Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The evidence before the Tribunal indicates that there are no cultural or language barriers. The Applicant is relatively young – he was born in 1987. He takes medication for cholesterol but he is not suggesting that he would not be able to access medication in Nepal. Otherwise, he does not have any significant health issues. There is evidence of suicidal thoughts and a gambling addiction. The Applicant’s family is in Nepal, including his mother and siblings.[51] His wife is in the UK.[52]
[51] Ex 6, 86.
[52] Ex 6, 86.
The Tribunal acknowledges that if removed from Australia, the Applicant could face some practical difficulties in Nepal, such as re-establishing himself but the Tribunal does not consider those difficulties to be insurmountable.
On balance, the Tribunal gives this consideration some weight against refusal.
Impact on Australian business interests
At paragraph 9.3 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal of any impact on Australian business interests.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9(1) of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The Tribunal recognises the significance of a visa refusal under section 501(1) and that the process is not intended to be formulaic, or a simple aggregation of the relevant considerations.
On balance, although there are aspects against refusal, the aspects in favour of refusal outweigh those against. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, as well as the expectations of the Australian community, weigh heavily in favour of refusal. The considerations against refusal, including strength, nature, and ties to Australia, and the legal consequences of the decision, do not outweigh the considerations in favour of refusal.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
96. I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes.
...................................[SGD].....................................
Associate
Dated: 19 August 2024
Date(s) of hearing:
6 August 2024
For the Applicant:
In person
Solicitors for the Respondent:
Ms Q Q Ren, HWL Ebsworth Lawyers
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