The Minister's protection visa refusal decision
282 At the commencement of his reasons, the Minister recorded that, in relation to his consideration of the appellant's satisfaction of the character test and his exercise of the discretion, he had had regard to non-disclosable information as defined in s 5(1) of the Act, and to the submissions made on the appellant's behalf in response to the Notice, "as well as other relevant information as outlined below".
283 The Minister's reasons (as reproduced below) indicate that he accepted that the appellant's conduct from January 2014 to April 2015 was caused by his bipolar disorder, that this condition may have been exacerbated by his being held in immigration detention, and that he had improved since April 2015.
284 In relation to the incident on 12 January 2014, the Minister noted the appellant's explanation and submissions concerning it. In particular, the Minister noted the appellant's claim that he had been upset at the time having just been informed of his mother's death, his claim that his threats had been directed to self-harm rather than harm to others, that his reaction was attributable to his bipolar disorder, and that, by reason of language difficulties, the New South Wales Police may have misunderstood what he was saying. The Minister also noted the appellant's acknowledgement that "I must have said a lot of things that I cannot remember at that moment in time because of the news my mother had passed away". The Minister then concluded (at [16]):
Having regard to NSW Police's descriptions of the incident, as set out in the documents mentioned above, as well as [the appellant's] explanations, I am satisfied that [the appellant] did make a threat to kill himself with a bomb on this occasion, although he may no longer remember this himself. I have made this finding despite having accepted that [the appellant] has no criminal history in any country, and having had regard to his United Arab Emirates Police Certificate, which contains a certification provided by Dubai Police that [the appellant] had no previous convictions as at 1 November 2016.
285 The Minister then considered a police report from when the appellant had been interviewed on 4 February 2014. The report stated that the appellant had claimed to have met a representative of Al-Qaeda, to have met a man at the Chester Hill Mosque with some association to a warehouse containing rocket-propelled grenades, and to have received training with a view to returning to Syria to fight. The Minister noted that the appellant denied having any of these associations and that the statement attributed to him had occurred at a time when he was manic. The Minister concluded (at [21]):
While the veracity of the claims made by [the appellant] during the police interview on 4 February 2014 remains unclear, I have found that the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context.
286 The Minister accepted that the appellant had made the threats recorded by detention centre staff. These were recorded by the Minister as follows (at [22]):
• On 3 March 2015, [the appellant] stated to a Client Services Manager that if he saw a particular detainee, he would assault him and throw a mixture of hot water and sugar mix on his face.
• On 24 June 2014, following an assault from another detainee, [the appellant] threatened to kill the other detainee.
• On 6 April 2015, [the appellant] approached a Client Services Officer (CSO) and stated that he wanted to kill him. When asked why he wanted to kill the CSO, [the appellant] stated that 'it's because you are always serious'. In relation to this incident, a Security Information Report provided by Serco on another incident on 7 April 2015 also notes that '[t]he other day [the appellant] threatened to kill a Hotham Staff member because he was allegedly hearing voices telling him that he is an infidel'.
287 The Minister then considered an incident report which indicated that the appellant had contacted the Department's Global Feedback Unit and had said that if he was sent back to Syria he would blow himself up. The Minister also referred (at [29]) to a report from a Detention Centre staff member that, in February 2014, the appellant had:
• stated that he had been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for 'the war';
• stated that he is friends with Osama Bin Laden's son who has offered to send guns to him in Australia; and
• extolled the virtues and philosophy of Osama Bin Laden at length.
288 Next, the Minister considered a security information report recording allegations by fellow detainees that the appellant had, while in detention, been attempting to recruit detainees to fight for ISIL. Having considered the appellant's explanation and submissions concerning these matters, the Minister said that he was satisfied that the appellant had engaged in the conduct, and had made the statements, which the various records attributed to him.
289 The Minister referred to the evidence provided by International Health and Medical Services, contracted by the Department to provide health care within the Australian detention network, which stated that the appellant's irrational behaviour was "directly linked to his return to held detention" which was "not appropriate or [conducive] to [the appellant's] major mental health condition". The Minister then noted information indicating that the appellant had not been charged with any criminal offence, and did not have a criminal record. The Minister also accepted that the appellant's mental health condition had improved since April 2015. The Minister concluded (at [39]):
Having regard to the above, I accept that [the appellant's] behaviour has improved since April 2015, and that his previous conduct, as recorded in the documents provided by NSW Police and the reports provided by Serco staff as outlined above, has resulted from his mental health condition, which may have been exacerbated by being held in immigration detention. However, I have also considered the non-disclosable information in this regard.
290 On the question of whether the appellant had satisfied him that he passed the character test, the Minister concluded:
[44] I have accepted that [the appellant's] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar effective disorder, and that his mental health and behaviour have improved since April 2015. I have also considered the submissions made by [the appellant's] migration agent that his conduct does not amount to serious conduct and is not a genuine reflection of his character.
[45] However, I have found that there remains a risk that [the appellant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his association with extremist groups are not true, the very fact that [the appellant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information.
[46] Although I consider there is a low likelihood of [the appellant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the appellant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the appellant's] threatened activity (including his threat to blow himself) was carried out in Australia, this would likely result in significant harm to the Australian community.
[47] I have therefore found that [the appellant] has not satisfied me that he passes the character test. Specifically, I have found that [the appellant] does not pass the character test by virtue of section 501(6)(d)(v) of the Act.
291 Having found that the appellant had not passed the character test by reason of s 501(6)(d)(v), the Minister then considered whether to exercise his discretion to refuse the protection visa. On the question of the risk to the Australian community, the Minister concluded:
[59] I noted that it has been submitted that [the appellant's] mental health concerns between 2014 and 2015 should be 'held in isolation', and were triggered by a period of extreme stress following the receipt of information that his mother had died and by being re-detained in a high security detention facility. His migration agent noted that, prior to 2014 and following 2015, [the appellant] has not experienced any acute episodes of bipolar and submitted that, in this context, the risk that [the appellant] poses to the Australian community if he engages in similar conduct is very low. I noted that [the appellant] has also submitted that he does not pose a risk to the Australian community.
[60] I noted the submissions that [the appellant] has never perpetrated any harm or violence against any person, nor been subjected to any further discipline action since April 2015 aside from referrals for medical assistance. I have also taken into account submissions that [the appellant] has never been charged with any offences and has been subsequently cleared from any investigations by ASIO and the police on the basis that [the appellant] is not an adverse security risk.
[61] While submissions made by or on behalf of [the appellant] tend to suggest a low likelihood of [the appellant] carrying out his threats, the likelihood is not negligible. In this respect, I have also considered the non-disclosable information. Should [the appellant] carry out his violent threats in Australia, it would likely result in injury or loss of life to members of the Australian community.
[62] Having particular regard to the extremely serious nature of the claims and threats made by [the appellant], I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community. I have placed significant weight on this consideration.
292 The Minister then considered expectations of the Australian community, and concluded as follows:
[65] I have also considered submissions made that refusal of [the appellant's] visa would be contrary to the Australian community's expectations given [the appellant's] 'very compelling protection claims', and that the Australian community's expectations would be that the risk of indefinite detention should outweigh [the appellant's] previous conduct, which it has been submitted was not serious or genuine in nature and does not pose an ongoing risk to the Australian community.
[66] However, I considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context, and would expect that [the appellant] would not be granted a protection visa. I have placed significant weight on this consideration.
293 Under the heading "International non-refoulement obligations", the Minister accepted that the appellant faced a well-founded fear of persecution and threat to life if returned to Syria, that Australia owed him non-refoulement obligations which would be breached if he was returned to Syria, that a legal consequence of the decision was that he would be liable to removal from Australia as soon as reasonably practicable without regard to those non-refoulement obligations, and that there was no known prospect of removal to any country other than Syria. The Minister then noted that the obligation to remove the appellant would not apply if he exercised a non-compellable power under s 195A of the Act to grant the appellant a visa if he believed doing so was in the public interest, or invited the appellant to apply for a bridging visa, though provided no indication of whether this would be done:
[67] I have had regard to submissions made on [the appellant's] behalf regarding [the appellant's] protection claims. I accept that my Department has found that [the appellant], if returned to Syria, would face a well-founded fear of persecution at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance.
[68] I accept the Department's finding that [the appellant] is a person in respect of whom Australia has international non-refoulement obligations. This means that removal of [the appellant] to Syria would breach those obligations. I also accept that there is currently no known prospect of removal to any other country.
[69] I am aware that the statutory consequence of a decision to refuse to grant [the appellant] a visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.
[70] I have noted that the obligation to remove [the appellant] would not apply if, following my refusal to grant him a Temporary Protection (subclass 785) visa, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the appellant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the appellant] as a result of my refusal decision under section 501(1).
[71] This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994), which he could only apply for in response to an invitation.
[72] I am mindful that even if I refuse to grant [the appellant] a Temporary Protection (subclass 785) visa, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the appellant's] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Syria, having regard to section 197C.
294 The Minister then concluded by weighing up the relevant factors as follows:
[76] In considering whether to refuse [the appellant's] visa, I considered the risk posed to the Australian community by [the appellant's] continued presence in Australia, taking into consideration the serious nature of the threats he has made.
[77] I found that the Australian community could be exposed to significant harm should [the appellant] engage in conduct similar to that threatened. I could not rule out the possibility of [the appellant] engaging in serious conduct akin to that threatened. I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community.
[78] Further, in light of the nature and seriousness of the claims and threats made by [the appellant] and the current global context, I considered that the Australian community would expect that [the appellant] would not be granted a protection visa.
[79] I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant's] case, including the potential harm for [the appellant] if he is returned to Syria, Australia's international non-refoulement obligations, and his mental health concerns.
[80] I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the appellant] to the Australian community is unacceptable.
DECISION
[81] Having found that [the appellant] does not satisfy me that he passes the character test, and that the reasons for refusing his present visa application outweigh the reasons for not refusing it, I have decided to exercise my discretion to refuse to grant [the appellant] a Temporary Protection (subclass 785) visa under section 501(1) of the Act.