Anees v Minister for Immigration and Border Protection

1. The application for judicial review be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 In 2007, the applicant came to Australia to study a Diploma of Commerce with the intention of undertaking a Bachelor of Commerce. He was granted entry pursuant to a student visa, and was later granted work rights on his student visa. In 2007-2008, he was a successful and involved student. 2 In August 2008, the applicant met his partner, whom the Tribunal called "Valentina". She had some serious medical conditions, and the applicant chose to drop out of Deakin University, where he was studying his Bachelor of Commerce, to help her with her recovery. However, as he was no longer enrolled as a student, his student visa was no longer valid. The pair remain together, and are engaged. They claim that they plan to marry once the visa situation is resolved. Valentina suffers from multiple serious mental health issues. 3 From 17 January 2011, the applicant was charged with a number of offences. A full table of the developments in the relevant time period is available at [9] of the Tribunal's reasons. It is unnecessary to refer to the detail of them. It suffices to say that the applicant shoplifted food, drink and medication for himself, as well as presents for Valentina. He also used credit card numbers he claimed to have found in a room in which he was staying to order goods online to a value of nearly $2,000. The Tribunal also emphasised three other offences: possession of a controlled weapon without excuse, recklessly causing injury, and threatening to inflict serious injury and assault with a weapon. 4 In August 2011, the applicant was taken into custody and discovered that he did not hold a valid visa and was in Australia unlawfully. In October 2011, when released from prison, he was taken to immigration detention. From this time, the applicant remained in Australia either in prison or on a bridging visa. He applied for a Partner Visa with Valentina. 5 In 2016, a delegate for the Minister for Immigration and Border Protection made a decision refusing the grant a Partner (Temporary) (Class UK) visa to the applicant. The applicant has been in immigration detention since. 6 Under s 501(1) of the Migration Act 1958 (Cth) (the Act), the Minister may refuse to grant a person a visa if that person does not satisfy the Minister that he or she passes the character test, which is set out in s 501(6). The delegate relied on s 501(6)(d)(i) to refuse to grant a partner visa to the applicant: (6) "For the purposes of this section, a person does not pass the character test if: … (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; or ... 7 Initially, a differently constituted Tribunal affirmed this decision. However, on 28 August 2017, a judge of the Federal Court of Australia, by consent, quashed the Tribunal's decision and directed that the application be reviewed again according to law. There were no reasons given for these consent orders, nor directions regarding the hearing on remittal. As such, a newly constituted Tribunal (the Tribunal) heard the matter afresh. 8 On 20 June 2018, the Tribunal again affirmed the delegate's decision. After considering the question of whether there was a risk that the applicant would engage in criminal conduct in Australia, the Tribunal concluded at [23] that: …there is more than a minimal or remote chance that he would engage in the same sort of conduct were he again to form the view that someone or something required his attention above all else and regardless of the consequences to others. Therefore, I find that, in the event the event [sic] that [the applicant] were allowed to enter or to remain in Australia, there is a risk that he would engage in criminal conduct in Australia within the meaning of s 501(6)(d)(i). Therefore [the applicant] does not pass the character test and I must consider whether I should exercise the discretion to refuse to grant him a Partner (Temporary) (Class UK) visa under s 501(1). 9 In coming to this conclusion, the Tribunal had regard to a report by Mr Simmons, a Consulting Psychologist. The Tribunal referred to Simmons' report in the context of asking whether the applicant will re-offend in the face of hardship. At [22] of its reasons, the Tribunal found that Simmons' report: …does not answer that question. His evidence is that [the applicant's] behaviour seems to have arisen from a particular set of circumstances and that he appears to be at a low risk of offending. Mr Simmons could not otherwise make a prediction of [the applicant's] behaviour in the future. 10 The Tribunal then considered the various factors affecting the application of the discretion to refuse to grant the applicant a Partner Visa. The reasoning is summed up in [81] as follows: [The applicant] had responsibilities and he chose to ignore them because he wanted to care for her and they were enjoying each other's company. He chose that course when he did not have a permanent visa and he chose it when he had the first wake-up call when he was charged with using an unregistered motor vehicle and driving while his authorisation was suspended. His offending started there and continued as I have described. It was a course of offending that showed disregard for the law even when he had the right to work but did not. His reasons for not working centre on Valentina's needs but [the applicant] made a choice about ignoring his responsibilities to the wider community. There is a real risk that he would go down the same path if he were faced with hardship and the potential for harm to members of the community outweighs his interests and those of Valentina. As hard as it is for him and for Valentina to be parted by being in different countries, I have decided that the interests of the Australian community lie in [the applicant's] not being permitted to be a member. They lie in his being refused a visa.