Brown v Minister for Immigration and Citizenship

1. Subsection 501(1) of the Act is as follows:
   • (1) 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.

Note: Character test is defined by subsection (6).

1. Relevantly, subsection 501(6) of the Act is as follows:
   • (6) For the purposes of this section, a person does not pass the character test if:
     • (a) the person has a substantial criminal record (as defined by subsection (7));...
2. Relevantly, subsection 501(7) of the Act is as follows:
   • (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...
3. Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that a person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501(1) of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at 591, per Katz J).
4. The Minister has made a direction under s 499 of the Act, namely "Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction 65). Direction 65 applies to the decision to refuse to grant the visa to the Applicant.
5. Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following relevant to the Applicant's case:

(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 or cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

(3) ...

(4) 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 cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

1. By way of general guidance, paragraph 6.2 of Direction 65 provides:

(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 the 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, or whether to revoke a mandatory cancellation under section 501CA. 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, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. The "principles" referred to in the General Guidance (as set out above) to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:

(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.

1. Paragraph 7(1) of Direction 65 sets out how the discretion under s 501(1) of the Act, to refuse the grant of a visa, is to be exercised:
   • (1) Informed by the principles in paragraph 6.3 above, a decision-maker:
     • (a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
     • (b) ...
2. Paragraph 8 of Direction 65 further states:

8. Taking the relevant considerations into account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. Part B of Direction 65 (paragraphs 11 and 12) sets out considerations that are relevant when deciding whether to refuse a non-citizen's visa application.

1. The Applicant does not pass the character test. He was sentenced to terms of imprisonment totalling 12 months. Subsection 501(7A) of the Act states where a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. Pursuant to s 501(7)(d) of the Act the Applicant therefore has a substantial criminal record (as that term is defined therein) and, accordingly, is taken not to pass the character test by operation of s 501(6)(a) of the Act. That is conceded by the Applicant in paragraph 19 of the Applicant's SFIC. Further, a person has a substantial criminal record regardless of whether the term, or terms, of imprisonment is, or are, suspended. The decision to impose a suspended sentence concerns how the sentence is to operate rather than determining the length of the term itself. See Brown v Minister for Immigration and Citizenship [2009] FCA 1098; (2009) 112 ALD 67; Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113; MAH and Minister for Immigration and Border Protection [2018] AATA 416.

SHOULD THE TRIBUNAL EXERCISE THE DISCRETION UNDER S 501(1) OF THE ACT TO REFUSE TO GRANT THE VISA?

1. Pursuant to paragraph 11(1) of Direction 65, the following are "primary considerations" that the Tribunal must take into account in deciding whether to grant or refuse to grant the visa:
   1. protection of the Australian community from criminal or other serious conduct;
   2. the best interests of minor children in Australia; and
   3. expectations of the Australian community.

1. Paragraph 11.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community 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 and other serious conduct. Decision-makers are also to 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. [Emphasis added]

1. Paragraph 11.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:

11.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:

• (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
• (b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
• (c) ...
• (d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
• (e) The sentence imposed by the court for a crime or crimes;
• (f) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
• (g) The cumulative effect of repeated offending;
• (h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
• (i) ...

1. There are two separate incidents of the Applicant's conduct which are relevant. The first incident was in 2012, the Applicant whilst driving under the influence and without a licence was in an accident which resulted in the death of one of the Applicant's friends and injury to another of his friends and to himself. The second incident occurred in January this year when the Applicant again drove a motor vehicle without a licence and with a blood alcohol content over 0.05 grams per 100 millilitres of blood. The Applicant pleaded guilty to those two recent charges in March this year.
2. The Minister's SFIC refers to the comments of Deputy President Kendall (as he then was) in Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [54] (albeit in the context of a decision to refuse citizenship) wherein the Deputy President said:

... There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.

1. Similar comments were made by Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]:

The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant's offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community....

1. Similar sentiments have been expressed by the Tribunal in QKJY and Minister for Immigration and Border Protection [2017] AATA 820 at [41]; NSWQ and Minister for Immigration and Border Protection [2016] AATA 373 at [58].
2. As a tragic example of the consequences of driving under the influence one need look no further than to the catastrophic results of the Applicant's conduct resulting in the death of his friend and injury to another and himself in 2012. It is therefore of very grave concern to this Tribunal that notwithstanding the tragic consequences in such conduct in 2012, the Applicant, less than three months ago when he knew that the Minister was considering the refusal of his visa under s 501(1) of the Act, still chose to drive under the influence of alcohol and without a licence. The seriousness of the Applicant's conduct, both in 2012 and in January this year, weigh heavily against the grant of the visa.

(b) The risk to the Australian community should further offences be committed

1. Paragraph 11.1.2 of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:

11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.

(2) In addition, decision-makers should have regard to the principle that 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.

(3) In considering the risk 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:

  1. information and evidence from independent authoritative sources on the likelihood of the non-citizen re-offending; and

  2. evidence of any 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); and

  3. the duration of the intended stay in Australia.

(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

1. The Applicant's various statements submitted in support of his application spoke of his rehabilitation, his change in attitude and his understanding of the consequences of his bad choices which resulted in the death of his friend in 2012. Examples are:
   • the Applicant's Personal Circumstances Form dated 26 August 2017 (G19, p115) in which the applicant says:

I faced four charges that all stemmed from drinking too much alcohol and then choosing to drive a car. I was a young man, and like young men at that age I was a risk taker. I thought that I was invincible. I could not imagine losing control of the car, did not think I would have hurt or killed my friends. At the time, on 3 March 2012 I was just a young guy hanging out with friends, drinking too much because we all did, driving carelessly because I had no thought to any consequences. I am very remorseful of (sic) my actions.

• in that same Personal Circumstances Form, in response to the question as to the likelihood of him reoffending, the Applicant says (G19, p 115):

I do not think I will re-offend. I rarely drink alcohol and I do not hold a drivers (sic) licence. I could not get in a car and drive under the influence of alcohol ever again.

• in the same Personal Circumstances Form, in response to the question of whether he has completed any courses or programs that will avoid further offending, the Applicant says:

Whilst I take full responsibility for the consequences of the accident on 3 March 2012, I understand by definition I am a criminal. I chose to drive under the influence of alcohol, the consequence of that crime was that injured (sic) my close friend, killed another and acquired a brain injury. I don't drink often, and still cannot bring myself to get a driver's licence. I will never commit this crime, nor intend to commit any other.

• the Applicant's statement of 27 August 2017 where he says (G20, p 122):

1. The Applicant was cross-examined on the circumstances surrounding his drink driving and driving without a licence in January 2018. He said that his wife was away visiting her father overseas and that he was anxious about the visa process. The Applicant's SFIC puts the Applicant's situation as follows:

29. Regarding the Applicant's most recent convictions, the Applicant notes that in the weeks leading up to the offence, he had been going through an emotionally and psychologically trying time. The Applicant was awaiting the outcome of his application for a Partner (Residence) visa so that he could remain with his wife and child in Australia but had been issued with NOICR by the Department last July. As such, the Applicant was experiencing a great deal of anxiety whilst awaiting a decision on his visa application.

...

32. The Applicant notes that on the evening of his most recent offending behaviour, he originally had no intention of leaving his house that night. However, being separate from his wife and child, and dealing with the stresses of his visa application, the Applicant resorted to consuming alcohol in an attempt to temporarily forget about his troubles. The Applicant notes that since his previous motor vehicle accident, he very rarely drinks and had in fact engaged with a course aimed at helping him cope with alcoholism. The result of the Applicant consuming alcohol in his home was that his decision-making faculties became significantly impaired, which in turn resulted in him making a reckless decision.

33. The Applicant advises that he is deeply remorseful for his previous offending. The Applicant notes that he lost a close friend as a result of a poor decision to drive after consuming alcohol and is ashamed of his offending behaviour. Following his most recent offending behaviour, the Applicant has sought out assistance for alcohol-related problems at Yongah Hill detention centre, where he is currently being held. The Applicant has fully engaged in this drug and alcohol program and has otherwise been an exemplary detainee during his time at Yongah Hill. We note that the Applicant was recently invited to a barbecue on the recommendation of a member of staff in light of his positive, cooperative and compliant behaviour. We enclose a copy of this invitation from Yongah Hill detention centre [Original Emphasis].

1. In cross-examination the Applicant was asked about the drink driving and driving without a licence offences in 2012 and in 2018.The following exchange took place in relation to the 2012 offences (Hearing Transcript, p 33):

...At the time you made the decision to drive the car, you knew it was an offence to drive under the influence of alcohol, didn't you? Yes, I agree.

And you knew that you should not be driving, because you didn't have a driver's licence anyway? Yes.

And you had driven without a driver's licence previously? Yes.

Do you have any explanation for those decisions that you made? No. No explanation.

1. The following exchanges took place in relation to the 2018 offences (Hearing Transcript, pp 39-40):

...

And I think you said that you had gone out to the casino to watch a game? A game, yes.

It was a soccer game? A soccer game, yes.

You had about three beers that night? Yes.

Did you meet anyone there? No.

No. Did you regularly go to the casino to watch soccer games? No.

No? Unless if [friend 1] or [friend 2] picks me up.

Right. So, ordinarily a friend would pick you up and take you to the casino and you would watch a game and have a few drinks? Yes.

On this occasion, you decided to just go by yourself? I thought at first, of getting like, our - get a cab or anything, or public transport. But, then I don't know what got into me, I just thought I should drive.

So, you live in Bentley, is that correct? Bentley.

And you went to the casino? Yes.

So, it would not have been a very expensive taxi ride, would it? Not really.

No, and which car did you drive? Was this your wife's car? My wife, yes.

Again, you knew that you did not have a licence, or you only had a learner's permit, at that stage. You knew you should not have been driving by yourself, didn't you? Yes.

...

So, you drove to the casino and you had - you watched a game for about two hours and then, you waited another hour? Yes.

And you drove home? Back home.

You say you had had about three beers? Yes.

And you were pulled over by a police officer? Yes.

Now, you knew that if you were caught drinking again, what the consequences might be, didn't you? Yes.

Yes. Because, this is not the first time it has happened. So, you have been arrested for that before. Can you just answer? Yes, yes.

And that is not just from a criminal point of view, you knew that you were specifically - the Department was specifically considering refusing you a visa, because of your previous offences, didn't you? Yes.

So, you would have been aware that being arrested and convicted on similar offences, would have an impact on that process? Yes.

And you also knew what the potential consequences might be, because of what had happened previously? Yes.

It was not a case where you might have not really thought about what could happen. You knew, because the worst thing possible had happened on the last time you drove whilst under the influence? Yes.

1. Counsel for the Minister then asked the Applicant what reassurances the community could have that he wouldn't reoffend again. The Applicant said that he had had counselling. It was then pointed out to the Applicant that he had had counselling following his convictions in 2012 and that it had clearly not had the desired effect. The following exchange took place (Hearing Transcript, p 41):

... What reassurances does the Australian community have, that if you were faced with stressful situations in the future, you won't behave in the same way? That's like, what I said earlier on. Like, I hadn't done any sort of, counselling or alcohol and drug after that - after the first incident.

Well ? Even after the second one. Because, when I got to the detention, that's when I started doing the alcohol and drug therapy counselling.

Well, I will stop you there, JNMK. Because, I think your former advisors had provided evidence from, I think the Southeast Metropolitan Community Alcohol and Drug Services, that you had been attending appointments there, for - there is very little detail, but they said that you had attended appointments in August 2017. Do you remember attending those appointments? I did that, but I did not like, continue. I stopped midway.

But, it is not correct to say that you had not had any counselling. You had had some, hadn't you? Yes, well I

But, you say that that was not successful. It wasn't useful to you? Like, I would say, it didn't like, really get to me - the first one.

The first offence, or the first set of counselling? The first counselling.

Did it really require counselling to bring home to you the seriousness of drink driving, given what happened to your friends? Come again?

Did it really - did you really need counselling to bring home to you, the seriousness of drink driving, given what had happened to your friends the first time you were involved in drink driving? I would say, yes. Because, I had - I mean, a brain injury and didn't like, even know what was going on.

Alright. Do you say you had a brain injury? Yes.

Are you - do you take medication for that? I stopped that. Like, I finished.

You finished? Taking the medication, yes.

Was that a short-term of medication in 2012, when this happened? When did you stop taking medication? 2012.

2012. Did you have - do you attend appointments with specialists? They used to like, send us an email like, I used to go for like, check-ups to see if there is anything that has happened. Like, they used to ask me, "Do you have any seizures or anything?". They used to check up on me.

When did they stop? How often were those appointments and when did you stop? They used to be at - I would say, like after three months. But, then they stopped.

DEPUTY PRESIDENT: So, that is three months after you were discharged from hospital, was it? Yes, like every - after three months, they like, asked us to go - like, go for a check-up. After three months again. Then, they stopped.

So, they stopped after three and so were discharged from hospital in what month? I think that was July.

So, when did these check-ups stop? Three months after July, was it? Yes, I think. So, this I should have (indistinct).

MR GERRARD: Have you gone and seen anybody about - sorry, I will withdraw that. You have said that the brain injury that you sustained has led to you making poor decisions, including earlier this year. Is that correct? Yes.

Have you seen anybody about that? Do you go to a doctor and tell them this? I haven't done that, like....

1. The only evidence relating to the Applicant's head injury is the letter from Dr Fong dated 29 June 2012 (Supplementary G-Documents SG1, p 397). This letter was written while the Applicant was still in hospital following the accident in March 2012. There is no evidence before the Tribunal relating to the Applicant's current condition in regard to his brain injury.
2. When further cross-examined on the circumstances surrounding his drink-driving in January 2018, in addition to the "about three beers" that he said that he had at the Casino while watching the soccer game, the Applicant conceded that he also had been drinking at home before he drove to the Casino. He said that he probably had two drinks before he left home. The Applicant could provide no explanation for his conduct (Hearing Transcript, p 42);

...Two. So, that is five beers across the night, rather than three beers. So, you had two beers and then, you chose to drive to the casino? I - yes.

Do you have any explanation for that - for the choice to drive to the casino after having had a few drinks and knowing that you were not permitted to do so? No explanation.

1. The Applicant was also cross-examined on his statements made in support of the application but prior to his second set of convictions in March 2018 for drink-driving and driving without a licence (Hearing Transcript, pp 43-44):

If I could get you to turn to page 122 (G20) and the second last paragraph, which starts, 5(1). Yes.

It reads:

My health is better now since the accident. I have been really focusing on exercise and [Applicant's wife] makes sure we all eat healthy in our house. I don't drink anymore. [Applicant's wife] told me that when I drank, I was not easy to be around. I have made it my mission in life to do better.

So, had you made a decision previously, not to drink? This - like, right now I'm in the immigration detention and I've - from what I've been seeing on the news and from the alcohol and drug therapy that I've been doing, it's not the same as when I did this. Because, when I did this, I was still out in the community and they - like the peer pressure around and stuff.

Right. So, when you said, "I don't drink anymore", obviously you had a drink on the 27th of January, but had you made a decision not to drink, back in August, when you wrote this, or were you still drinking? That's what I'm trying to explain. Like I - when I made this, it was like I don't drink anymore. Then, come in - like, the friends, they were all - like, the peer pressure and stuff all make you start doing the wrong things again.

And that is the nub here. That is what I am trying to understand, JNMK? M'mm.

I know you did drink subsequently, but what I want to know is, when you wrote this statement, had you made a decision not to drink? Yes.

Yes. So, when you say today, that you have made a decision about a month ago not to drink, that is not the first time you have made that kind of decision, is it? Yes. But, what I'm trying to say, it's different from now. Because, when I made this, I wasn't in detention.

Right. But, you cannot drink in detention, can you? So, it is a little easier to not drink in detention, than it is when you are in the community. Is what you mean that you do not have the same peer pressure in detention, that you have when you are in the community, when you wrote this statement here? That - yes, that's what I'd be like.

I think you have also said that being in the detention centre, you became aware of media reports of people who had been in accidents, because of drink driving and that has made you more aware of the consequences of drink driving. But, the accident you were involved in, back in 2012, that was the subject of media reports, as well, wasn't it? Yes.

And you were aware of those media reports? Yes.

So, it is not the first time that you have been aware of media reports about the consequences of drink driving, because you in fact were the subject of some of those media reports. Is that correct? Yes.

1. In relation to strategies to avoid the claimed peer group pressure to drink, the Applicant said in examination-in-chief:

APPLICANT'S COUNSEL; Do you have any plan in your mind that you are going to exactly that and how you're going to do it? Because I've got like this soccer - social soccer team and normally that's where most of my friends go and they go there with beers and they drink from there, so I talked about this with my partner and she said if - if you want - if you're released from detention, if you want to go for soccer you still go and play, or you don't go, because if you go there you will get back to your old ways and I agreed with her. Like, I'm either not going to go for soccer or, if I go, I just play and go back home because if I just go and watch, they will try and drag me to drink and all that.

1. The obvious concern of the Tribunal is the likelihood of the Applicant repeating the conduct for which he has been twice convicted. It is clear that there has been no rehabilitation of any effect undertaken by the Applicant. The Tribunal is often confronted with having to make assessments of how effective rehabilitation undertaken by an applicant has been or what credence can be given to an applicant's claims that there will be no re-offending. In the present case, unfortunately, the Applicant has largely taken that assessment out of the realms of speculation. It is clear to the Tribunal that there has been no effective rehabilitation and that the Applicant's claims that he has understood the grave consequences of his choices and that he will not reoffend can be given no weight. If killing a friend and injuring another and himself was not a sufficiently tragic consequence of the Applicant's choice to drink and drive to cause the Applicant not to repeat that conduct, then the Tribunal would have thought that the obvious impact that a repeat of that conduct would have on the Applicant's visa application would have been. But it was not.
2. The Applicant must be assessed on the basis of what he has done, in full knowledge of the consequences, not on what he says he will do in the future. In the circumstances the Tribunal is of the view that there is a substantial risk of the Applicant reoffending. Given the serious consequences of repetition of this conduct, the Tribunal finds that there is an unacceptable risk to the Australian community. This weighs heavily against the grant of a visa to the Applicant.

(ii) Best interests of minor children in Australia

1. Paragraph 11.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant in considering the best interests of a child. They are:
   • (a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
   • (b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
   • (c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that contact has, or will have, a negative impact on the child;
   • (d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
   • (e) Whether there are any other persons who already fulfil a parental role in relation to the child;
   • (f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
   • (g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
   • (h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
2. As noted above, the Applicant has one daughter aged two years and is expecting another child in July this year. On the evidence presented the Tribunal accepts that the Applicant is a loving and caring father.
3. The Minister accepts that it would be in the best interests of the child if the Applicant was not refused a visa and that this consideration weighs against refusal (Minister's SFIC paragraph 36).
4. In his evidence-in-chief (Hearing Transcript, pp 24-25) the Applicant, in response to the question of whether he and his wife had discussed where they intended to build a family, in Australia or Zambia, the Applicant said:

... She - at the moment, she's - she go back to university but we've talked about - because she's like business minded, she said maybe in future we can start up a business in Zambia.

That's in future and you don't know how long from now that? She said, at the moment, she has to concentrate with university. That's when she graduates, maybe make some money and then go and maybe start a business in Zambia.

1. Although perhaps less enthusiastic than the Applicant, the Applicant's wife's evidence was to the effect that they had discussed a long-term goal of running some hospitality based business in Zambia. She did say that she wanted to complete her studies and get some money together before they embarked on that project. She saw a possible move to Zambia being "10 to 15 years from now" (Hearing Transcript, p 64). Her evidence was that she had been warmly welcomed into the Applicant's family in Zambia.
2. The evidence of the Applicant was that his father owned three farms in Zambia (Hearing Transcript, p 30) and that the Applicant's family is largely still in Zambia. When the applicant returned to Zambia in 2012 he worked on one of his father's farms (Hearing Transcript, p 34).
3. While it is accepted by the Minister that the best interests of the child would be served by the grant of the visa, it is not totally clear that if a visa were not granted that the family would not relocate to Zambia. The Applicant's wife gave evidence that she provides care for her grandmother for which she receives a carer's benefit from Centrelink (Hearing Transcript, p 55). The Applicant's wife's grandmother lives with her husband, however, he has dementia. The Applicant's wife's evidence was that, while there were other members of her family (two aunties) who could look after her grandmother it would be difficult because they worked full-time (Hearing Transcript, p 56).
4. The Applicant and the Applicant's wife also gave evidence that finding employment in Zambia, particularly without a higher qualification, would be difficult, hence the Applicant's wife's preference to complete her current university course and save some money before considering shifting to Zambia. It is not completely clear to the Tribunal that if the visa were not granted, the Applicant and the child would be separated.
5. As noted above, the Applicant and his wife are expecting another child in July this year.
6. The basis upon which an unborn child is to be considered has been dealt with by the Tribunal in a number of cases. In Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 at paragraphs [73] to [74], Deputy President Forgie said:

73. That brings me back to the Convention and to whether an unborn child can be a human being within its context. It seems to me that an unborn child cannot be regarded as a human being in that context. That is not to say that an unborn child does not receive acknowledgment in the Preamble to the Convention and specific recognition that it requires special safeguards and care, including appropriate legal protection, before as well as after birth. Equally, the unborn child receives specific recognition in the DRC and implied recognition in the ICCPR's prohibition of capital punishment upon pregnant women. But it is specifically because the international instruments need to give specific or implied recognition to unborn children in specific circumstances that adds weight to the conclusion that its general provisions relate to a child who is separate from its mother and so has become a human being as it has been understood at common law. Apart from the specific and implicit references to the unborn child in the Convention, the remainder are to the child who has been born and is leading an existence separated from his or her mother's body.

74. Paragraphs 2.13-2.16 of the Minister's direction refer to a "child [who] is or would be less than 18 years of age at the time when the decision is intended to come into effect" (paragraph 2.13). As the direction was drafted after the High Court's judgement in Teoh and in view of the reference to the age of a child, I have concluded that the Minister was referring to a "child" in the sense in which the word was used in the Convention. That means that, in Chhun Fong's case, the best interests of her unborn child are not a primary consideration in this matter under either the Convention or the Minister's directions. The fact that she is expecting a child to an Australian citizen is, however, one of the considerations which must be taken into account. The fact that Chhun Fong has become stepmother to Carol Tan, an Australian citizen, and so has a parental relationship with that child, is a primary consideration which must be taken into account.

1. In the decision of Smit Romero and Minister for Immigration and Citizenship [2010] AATA 196 Deputy President S D Hotop said at paragraph [44]:

44. A contrary view has been expressed by the Federal Magistrates Court of Australia in Griffiths v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 249 where McInnis FM said (at [104]):

"I do not accept that the best interests of the children would not cover the best interests of a child yet to be born though conceived. It seems artificial to ignore the United Nations Convention and/or interpret it in such a narrow way that it would be confined to a 'living child'."

An appeal from McInnis FM's decision was, however, allowed by the Full Court of the Federal Court of Australia: see Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths [2004] FCAFC 22. Although the Full Court's decision turned on grounds other than the abovementioned view expressed by McInnis FM, the Court commented briefly on that issue (at [32]):

"32 Although the respondent did not seek to support the second and fourth bases on which the Federal Magistrate's decision turned in his oral submissions, we will deal with them briefly. Both of them rested on the proposition that the failure to deal with the interests of the unborn child under the heading that dealt specifically with the 'Best Interests of the Children' in the issues paper gave rise to jurisdictional error. But the short answer to this proposition is that this issue was dealt with elsewhere in the issues paper, in particular at paras [71] and [72] under the sub-heading dealing with the interests of the de facto spouse and there is, in any case, no reason to suppose that it was not considered by the Minister."

It seems to the Tribunal that it is implicit in para [32] that the Full Court did not consider that the Minister was obliged to treat the best interests of the unborn child as a primary consideration; instead, the Court considered it appropriate that the interests of the pregnant de facto spouse be treated as a relevant consideration (other than a primary consideration).

1. Accordingly, the Tribunal has considered the impending birth of the second child in considering the interests of the Applicant's wife under paragraph 12.1(b) of Direction 65 and does not treat the interests of the unborn child as a primary consideration.
2. On balance, however, the Tribunal accepts that the interests of the Applicant's daughter weigh in favour of the grant of the visa.

1. The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 11.3(1) of Direction No. 65 states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. 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. Decision-makers should have due regard to the Government's views in this respect.

1. In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 65 and, in particular, the principles that:
   • (a) the Australian community expects the Australian Government to refuse to grant visas to non-citizens who commit serious crimes (paragraph 6.3(2));
   • (b) non-citizens who commit serious crimes, including of a violent or sexual nature, should generally expect to be denied the privilege of coming to Australia (paragraph 6.3(3));
   • (c) in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (paragraph 6.3(4)); and
   • (d) the length of time a non-citizen has been making a positive contribution to the community (paragraph 6.3(7)).
2. The Tribunal notes the statement of Deputy President McCabe in Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [60]:

The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.

1. The Tribunal also notes KDSP and Minister for Immigration and Border Protection [2017] AATA 2169, wherein Senior Member M J McGrowdie stated at [36]:

The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant's behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.

1. The Minister at paragraph 39 of his SFIC submits:

Having regard to those principles [paragraphs 6.3 and 11.3(1) of Direction 65] the respondent submits that the Australian community would expect that a visa would not be granted to a person who had committed offences of extreme recklessness which resulted in the death of one person and injury to another. In circumstances such as these, the Australian community would expect that the applicant's application for a visa be refused.

1. The Applicant's only submission in relation to this consideration (paragraph 45 of the Applicant's SFIC) is to acknowledge "... that the expectations of the Australian community are that non-citizens will obey the laws of Australia while resident in the country". That statement, however, is not the relevant consideration for the purposes of paragraphs 6.3 and 11.3(1) of Direction 65. The relevant expectation of the Australian community is that which relates to the granting of a visa to this Applicant given all of the circumstances. The Tribunal is of the view that the expectations of the Australian community would be that a person who has been convicted of drink-driving and driving without a licence which resulted in someone dying who, knowing full-well the consequences of such behaviour, chooses to repeat that behaviour should not be granted a visa. This consideration weighs against the grant of the visa.

• (1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): * (a) International non-refoulement obligations; * (b) Impact on family members; * (c) Impact on victims; * (d) Impact on Australian business interests.

2. While the first line of this paragraph refers to cancelation of visas rather than refusal to grant visas as the heading of this Part of Direction 65 suggests, it is generally taken to also apply to the exercise of the discretion to grant or not to grant a visa. Paragraph 6.2(3) of Direction 65 provides that the relevant factors to be considered in making a decision under s 501 of the Act are identified in Parts A and B and as a result the considerations in paragraph 12(1) are relevant to the discretion to refuse to grant a visa.

1. No non-refoulement obligations were raised by the Applicant and the Tribunal is satisfied that none arise in this case.

1. Paragraph 12.2(1) of Direction 65 identifies the relevant family members for this consideration as being "immediate family members". The same term is used in paragraph 6.3(7) of the Principles in Direction 65. In this case the Tribunal takes this to mean the Applicant's wife and daughter. The best interests of the daughter have been considered above (see paragraphs 55 to 67 above).
2. Evidence was given of the role played by the Applicant's wife in providing care to her grandmother (Hearing Transcript, p 55). Insofar as a refusal of the visa might impact the Applicant's wife's grandmother, that is not a relevant consideration except insofar as that might have an impact on the Applicant's wife. In any event, the Tribunal finds that while the Applicant's wife currently provides care to her grandmother, if she were unable to do so, the grandmother's needs would be met by others whether that is through other family members or government services.
3. The Applicant (paragraph 46 of the Applicant's SFIC) submits that a refusal of the visa will result in significant financial and emotional hardship for the Applicant's wife. A letter dated 27 August 2017 (Attachment I to Exhibit A1) from the Applicant's wife sets out the difficulties that the Applicant being sent back to Zambia would cause. It is noted that this letter was written before the Applicant's wife became pregnant with their second child. In that letter the Applicant's wife says that the chance of the Applicant getting employment in Zambia without a qualification is low. The Tribunal notes that the Applicant has a commerce diploma from Curtin University (see Hearing Transcript, cross-examination at p 30).
4. Evidence given at the hearing indicated that the Applicant had a large extended family in Zambia that his father was successful, owned three farms (Hearing Transcript, pp 29-30 and 34) and was building a house on one of the farms. The Applicant also gave evidence that when he returned to Zambia in 2012 he had applied for jobs but when he was unsuccessful he had been employed on one of his father's farms (Hearing Transcript, p 34).
5. Evidence was also given by the Applicant's wife that she had been accepted into the Applicant's family in Zambia. As she put it (Hearing Transcript, p 51):

What was the family's reaction, given that you are not from his background or not from Zambia, to receive you? His family were not bothered by the fact that I wasn't Zambian, considering the fact that through the accident I was there for him every day and that's the first time I spoke to his mother. The night of the accident I called her to tell her, her son had been involved in an accident and I would update them frequently, and I saw him every single day. So I would provide the status of JNMK's recovery to them and they were just so grateful that I, an Australian girl, stood by him through all this and I didn't just leave him with that.

1. Later in her evidence the Applicant's wife said (Hearing Transcript, p 63):

So you went over for about a month and you met his family? Yes.

It seems clear from the evidence of both yourself and JNMK that you were welcomed with open arms? Yes.

You had felt much a part of their family? Yes.

1. What would happen if the visa was not granted and the Applicant's wife chose to stay in Australia was also canvassed with the Applicant's wife in the hearing. Her mother lives in Perth as does her sister. Her sister was looking after her daughter when the Applicant's wife gave evidence and her mother was going to be looking after the child the following day (Hearing Transcript, p 65). The Applicant's wife lives in her mother's house rent-free and a paying boarder in that house helps financially (Hearing Transcript, p 66).
2. The Applicant's wife was asked what would happen if the visa was not granted. She answered (Hearing Transcript, p 67):

We can't make a decision currently because there's just way too many factors involved. So obviously, the ideal situation would be for JNMK to come home and be there for his family and for us to continue as a family and to support each other, to grow. But if that's not the case, then we still have to try and see what we can do to make it work, but it just depends on what the odds are and what the odds of employment are because, like I said before, finding employment in Zambia without a degree is just really limited.

1. The Applicant's wife was also asked about the decision to get married in 2013 before the visa application had been made and when the Applicant's wife, and presumably the Applicant, knew that there may be difficulties in him getting a visa given his serious criminal record. The Applicant's wife gave the following evidence (transcript P-65):

When you applied for the partner visa, you were aware at that point that there might have been difficulties? And this was at the start when I applied in 2013:

- yes.

I think you gave evidence before that you were aware but you didn't really give it too much thought because.... What I thought was, I thought that the hardest stage was going to be was getting him from Zambia to Australia. I thought that was going to be the crucial point in this is either going to make us or break us and then once he was here, I didn't realise that the second part of the process would be as tough because I thought it was just a matter of two years from now, "is your relationship still genuine and continuing", "do you have a, you know, real relationship" and I thought that would be the easier part because the hardest part was him getting here and him establishing a life with me. So I didn't realise that the second phase would be the hard part.

Did you have discussions with him about this? Yes.

This is back in 2013? Yes.

1. There is no doubt that the Applicant's wife's preferred position is for the visa to be granted and for her husband to remain in Australia. It is also clear that there would be adverse impacts on the Applicant's wife both financially and emotionally if the visa were not granted. It is, however, the case that if the visa were not granted the Applicant's wife would have the option, albeit one that she does not want to take, at this time anyway, to be with her husband in Zambia. It also appears on the evidence of the Applicant and the Applicant's wife that there would be support provided by the Applicant's family to the Applicant's wife and children if she chose to follow the Applicant to Zambia. It is also an option for her to stay in Australia where she does have family support. The Tribunal also takes into consideration that at the time that the Applicant's wife married the Applicant she knew that there was a risk that the visa application would be unsuccessful because of the Applicant's serious criminal convictions.
2. Based on all of these factors, and noting that the Minister (Minister's SFIC paragraph 44) "... concedes that the visa refusal will have an adverse impact on the applicant's wife", the Tribunal finds that this consideration weighs in favour of the grant of the visa. The Tribunal is of the view, however, that this consideration is outweighed by the primary considerations.

1. A letter and a statutory declaration from the person who was injured in the accident in 2012 were provided with the Applicant's submissions (Exhibit A1, Attachment L). Both documents were to the effect that the victim thought that the Applicant should be given another chance. No evidence was put on as to the attitude of the family of the person who died in the accident. Overall, the Tribunal is of the view that this consideration is either neutral or marginally in favour of the grant of the visa.

1. A statutory declaration was provided by the Applicant's employer at Mountway Holiday Apartments which confirmed that the Applicant was a good employee and of sound character and that if the Applicant were allowed to stay he "would have no hesitation in re-employing him immediately" (Exhibit A1, Attachment R).
2. Paragraph 12.4 of Direction 65 provides that "...an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia". On that basis the Tribunal places no weight under this consideration on the potential employment of the Applicant.

1. The Applicant does not pass the character test under s 501 of the Act.
2. In relation to the primary and other considerations that the Tribunal must take into account under Direction 65:
   • (a) the protection of the Australian community weighs heavily in favour of the Applicant not being granted a visa. The nature and seriousness of the Applicant's conduct and the likelihood of his re-offending pose an unacceptable risk to the Australian community;
   • (b) the interests of his child weigh in favour of a grant of a visa, however, are outweighed by the other primary considerations;
   • (c) the expectation of the Australian community would be that in the present case the Applicant would not be granted a visa; and
   • (d) the other considerations under paragraph 12 of Direction 65 are far outweighed by the primary considerations of protection of the Australian community and the expectations of the Australian community.

1. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

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