The applicant's offending was not of a violent nature and would not be categorised as very serious. I note the principle that crimes of a violent nature against women are viewed seriously but I do not consider that the applicant was acting violently during the cinema incident and, as I found above, I consider he had no intention to inflict injury on another person but rather was acting to protect his own partner. The crime of having a kitchen knife in his backpack involved no violence and his explanation was satisfactory. The crime involving the pocketknife after shoplifting from Woolworths was not very serious based on his evidence and the relatively low sentence of a community correction order. The theft and credit card fraud did not involve large sums of money and arose in the circumstances already described where the applicant found himself in a dire financial situation. He stole items so as to satisfy the needs of himself and his partner.
The offending was frequent but took place over a limited period of three years. I take into account that he committed offences in breach of a suspended sentence and in contravention of a community based order which shows a disregard for judicial authority, but I do not consider the cumulative effect of the repeated offending renders the nature of the offending as serious. The nature of the offending needs to be seen in the context of the unstable circumstances of homelessness and impecuniosity which led to the offending. I do not discern a trend of increasing seriousness, rather there are traffic offences in January 2010 and a series of petty thefts in January 2010, May to June 2011, May 2012, September 2012 and January 2013. He was convicted of the offences for which he received a prison sentence in August 2011. His later offending did not attract a prison sentence which suggests the offending became less serious.
The nature of the harm if the applicant re-offends does not give rise to a significant risk of physical injury. The majority of the offending involved theft from retail outlets which were not of significant value. I do not consider the potential harm from re-offending to be serious.
As to the likelihood of re-offending, I take into account the independent and authoritative expert reports from the two psychologists who both found a low risk of recidivism. Further, there is evidence of rehabilitation achieved by the time of this decision because he has attended an anger management course and the experts considered he showed genuine remorse and had a proper insight into his offending. Most importantly, I give very significant weight to the time spent in the community since his most recent offence in January 2013, which is now over seven years ago. The applicant spent over three and a half years in the community during which, not only did he not offend, but he contributed positively to the community by working at all times and engaging in other merit worthy activities. His unblemished record from January 2013 in the community continued whilst he was in detention from October 2016 to date. The applicant has proved himself to be fully rehabilitated.
I find that the Government's commitment to protecting the Australian community from harm can still be achieved if the applicant is released into the community because the risk of further offending is low, and the nature of any future offending would not be serious. I do not consider that this is a factor in favour of refusing the applicant his visa application.
[2]
The applicant put forward his current partner's daughter as a child who would be impacted by any decision to refuse a visa. The applicant's relationship with his partner and her daughter has only been whilst in detention and for a relatively short period of time. The daughter has only visited him twice in person and other contact has been by phone. The relationship is non-parental, and they have had limited meaningful contact. I am not satisfied that there is any significant or meaningful relationship between the applicant and his partner's daughter, and I am unable to conclude that it would be in her best interests for the visa application to be granted. I consider this factor to be neutral in terms of exercising my discretion to refuse to grant a visa.
[3]
The Expectations of the Australian Community - 11.3
[4]
In YNQY v Minister for Immigration and Border Protection[2017] FCA 1466, Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1)[12] rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(7) of Direction 79 that:
[5]
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.
[6]
I take into account that the Australian community expects non-citizens to obey Australian laws while in Australia. However, whilst this expectation has not been met with respect to the applicant for a limited period of three years in the past, he has shown himself to be well behaved during the majority of his time in Australia. The significant length of time that the applicant has been contributing positively to the Australian community when compared to the much shorter period of offending means that the Australian community would not expect his visa application to be refused. I have no concerns about the character of the applicant; to the contrary, I have found that he is of good character. The nature of the offending and their circumstances when seen in the context of his lengthy periods of good behaviour mean that the Australian community would not expect his visa application to be refused. I do not consider that this is a factor in favour of refusing the applicant his visa application.
[7]
The parties to this matter agreed that I should give neutral weight to the other considerations of international non-refoulement obligations, impact on victims and impact on Australian business interests.
The applicant contends that I should give some weight to the impact on family members because of his relationship with his current partner and her daughter. My view is that they are not family members and therefore this factor is neutral because there are no family members in Australia. If I am wrong about that then I would only give minimal weight to this factor in favour of not exercising my discretion to refuse to grant a visa.
[8]
Conclusion as to the exercise of my discretion
[9]
I have considered the specific circumstances relating to the applicant as part of my consideration whether to exercise my discretion to refuse to grant the applicant a visa. Having considered the factors in Direction 79 I have reached the conclusion that those factors do not favour the refusal of the applicant's visa application. In particular, the primary considerations relating to the protection of the Australian community and the expectations of the Australian community are factors which do not favour refusing to grant a visa. The applicant is fully rehabilitated, and he has contributed positively to the Australian community since his last offence in January 2013. The nature of his offending was not serious but, in any event, he has shown insight into his offending and has expressed genuine remorse. He does not pose any significant risk to the Australian community if released.
In all of the circumstances I would not exercise a discretion to refuse to grant the applicant his visa.
[10]
I am satisfied that the applicant is of good character, and, in any event, I would not exercise my discretion to refuse to grant a visa to the applicant. I set aside the refusal decision and substitute a decision that the applicant not be refused a visa under s 501(1).
[11]
Icertify that the preceding sixty-seven [67] paragraphs are a true copy of the reasons for the decisions herein of Deputy President Britten-Jones.
[12]
Applicant's Representative: Mr J Burnside QC instructed by Carina Ford Immigration Lawyers
[13]
Mr H Watkins of Counsel instructed by Carina Ford Immigration Lawyers
[14]
Respondent's Representative: Mr M Cleary of Counsel instructed by Sparke Helmore Lawyers
[15]
[1] All references to legislation are to the Migration Act 1958 unless otherwise stated.
[16]
[2]Assistant Minister for Immigration and Border Protection v Splendido[2019] FCAFC 132 at [131].
[17]
[3] The decision of Kerr J was overturned on other grounds.
[18]
[4]Sabharwal v Minister for Immigration and Border Protection[2018] FCA 10 [ 83].
[19]
[5] A Police Character certificate (G119 at p 599) was tendered in support of his good behaviour whilst in Pakistan.
[20]
[10] [Names] have been removed for confidentiality.