DMH16 v Minister for Immigration and Border Protection

1. The applicant has previously consented to an AVO on 9 July 2015, which was with the protection of the applicant's former girlfriend. On 7 September 2015, the applicant had, in breach of the AVO, contacted her, and she gave the applicant her current address. On 8 September 2015, and also in breach of the AVO, the applicant attended that address as he had arranged with his former girlfriend, and in the course of that visit, assaulted her. The assault took place in the presence of her uncle and cousin, and arose between the applicant and his former girlfriend over her mobile phone, as it appeared that she had had contact with another man. The applicant had been seized with anger and jealousy, as he appears to have wanted to hold on to his relationship with his former girlfriend, a person with whom he had lived with for some time previously.
2. After the departure of the applicant from his former girlfriend's premises, there was a phone conversation between them, at which time he said that he did not want to lose her. His former girlfriend wrote to the Magistrate, stating that she was sorry for her part in what had happened, and did not want the applicant to be jailed. Apparently, the applicant's former girlfriend had wrestled with the applicant in an attempt to get her phone back from the applicant. This is, of course, against a background that the applicant should not have been in contact with her, even though he says she contacted him first, that he should not have gone to her premises even if invited, that he should not have grabbed her phone, and that, certainly, he should not have assaulted her, there being absolutely no excuse for that.
3. The initial AVO was taken out by his former girlfriend after they had separated, when the applicant had met her for a driving lesson for her. There had been an argument between her and the applicant which arose when she saw some contact on the applicant's phone and another woman. On that occasion, she reported to police that the applicant had slapped her, a number of times. No charges were laid, but the police moved forward with the AVO, which the applicant consented to. There is, in respect of the applicant's application for a visa, an acceptance that the applicant does indeed fail the character test. The question arises as to whether the discretion under s 501 of the Migration Act 1958 (Cth) ('the Act'), not to refuse the visa, should be exercised.

1. The discretion under s 501 is to be exercised by reference to Ministerial Direction 65 ('the Direction') made pursuant to section 499. Part B of that Direction deals with visa refusals. There are primary considerations and other considerations. Primary considerations are generally to be given more weight. The Tribunal will address each consideration in greater detail, but will indicate what those considerations are. The primary considerations are:
   • (a) the protection of the Australian community from criminal or other serious conduct;
   • (b) the best interests of minor children in Australia; and
   • (c) the expectations of the Australian community.
2. The other considerations include:
   • (a) international non-refoulement obligations;
   • (b) impact on family members;
   • (c) impact on victims; and
   • (d) impact on Australian business interests.
3. In addition to the primary and other considerations, the decision maker is to have regard to and be informed by the objectives of the Act, and the principles which underlie. By way of general guidance, it is stated in paragraph 6.2 of the Direction 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.

1. Principles are stated at paragraph 6.3 to the following effect:

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...A non-citizen who has committed a serious crime, including of a violent or sexual nature, particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to ...forfeit the privilege of staying in, Australia... In some circumstances, criminal offending... if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. Australia has a low tolerance of any criminal conduct by persons who have only been in the Australian community for a short period of time, particularly for those who have been in Australia on a limited stay visa.

1. In viewing the primary consideration of the protection of the Australia community, decision makers are, by paragraph 11.1, to give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. There is further elaboration of the consideration of the nature and seriousness of the non-citizen's conduct, which is set out in paragraph 11.1.1 of the Direction. Crimes of a violent nature are viewed seriously. Relevant, also, is the sentence imposed by the Court, the frequency of the offending, the cumulative effect of repeated offending, and whether the applicant has provided false or misleading information to the Department, or not, when disclosing prior criminal offending.
2. There is also elaboration in relation to the consideration of the risk to the Australian community should the non-citizen reoffend. The tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. There is lower tolerance from criminal or other serious conduct by those holding a limited stay visa. Further, in considering the risks of further harm, the decision maker should look at the nature of the harm, information and evidence from independent and authoritative sources, evidence of any rehabilitation, and the duration of the intended stay in Australia, and whether there are strong and compassionate reasons for granting a short stay visa.
3. It is against this background that the Tribunal reviews the relevant facts of the case.

1. On 3 July 2015, the applicant took his former girlfriend for a driving lesson. At this time, they were not living together. At the conclusion of the drive, the applicant and his former girlfriend were sitting in the applicant's car when she, looking through the applicant's phone, saw multiple calls from a woman. She spoke to the applicant about this and an argument developed. According to her reporting of the matter to police, she said that she had been slapped on the cheek a number of times and that this had not been the first time. There was no mark visible to the police on her face. The police contacted the applicant and, at interview, he denied striking her. Given that there were no witnesses and no marks on her, no charges were laid. However, as stated, the police sought the AVO for her, which the applicant did not oppose.
2. There was no contact between the applicant and his former girlfriend between early 2015 and early September 2015. The applicant has said that she contacted him, saying that she had a recent accident and had hurt her back and needed his help. The applicant says that he spoke to her about the AVO and terminated the call. Playing on his mind, according to the applicant's version, he attempted to contact her on the number that had shown up on his phone, and that, on the seventh call, she answered and asked the applicant to visit her at her new address, which she gave the applicant. The applicant then attended the premises. She invited the applicant in. She was with her uncle and cousin. She served the applicant with tea and something to eat. When she went to the bathroom, the applicant went through her mobile phone and saw a noting of a man who she had been seeing.
3. An argument development and she attempted to retrieve her phone. The applicant went to the kitchen to get a glass of water and she followed. The applicant picked up a kitchen knife lying on the bench and pointed it at her. They were about 4 metres apart. One of her relatives took the knife from the applicant. The applicant then approached her and placed a hand around her neck for a short time while holding her phone in the other hand. She then grabbed the applicant in a headlock to retrieve her phone. The applicant was then evicted from the premises by her relatives. He phones her almost immediately and had a 30 minute conversation with her. She made a report to police.
4. When the applicant was interviewed by police, he denied assaulting his former girlfriend. The applicant was nonetheless arrested and charged with stalking, breach of the AVO, and two charges of common assault. These charges were dealt with at Court on 25 September 2015 when the applicant pleaded guilty. He was represented and there was a Fact sheet. The Fact sheet does not record that his former girlfriend had initiated the contact by phone call to the applicant. Rather, it is detailed that the applicant had attempted to contact her on 7 or 8 September 2015, and that she answered on the seventh call. Whereas the applicant says that she had invited the applicant to her place and told him when he arrived that she had feigned illness to get him to come. The police made a record that he attended uninvited but was then let in by his former girlfriend.
5. There is, perhaps, some substance to the applicant's assertion that he was asked by his former girlfriend to visit, as she had moved address and the applicant did not know of its location until he was informed of it by his former girlfriend. Similarly, with her changed phone number. In any event, there was simply no excuse for the applicant assaulting her after he got there, despite the fact that she did not suffer physical injury. The police withdrew the charge of stalking. On the remaining charges, the applicant was sentenced to eight months imprisonment for each, to be served concurrently and with a non-parole period of three months, together with six months of parole supervision following release. The sentences were to commence from 10 September 2015, with release subject to supervision on 9 December 2015. Upon the applicant's release, he was taken into immigration detention.
6. For the purposes of the Act, a person will be regarded as having a substantial criminal record if the person has been sentenced to two or more terms of imprisonment, where the total of those terms are 12 months or more.[2] Having a substantial criminal record precludes a person from satisfying the character test under the Act.[3] Technically, the applicant fails the character test, as he was sentenced to more than two terms of imprisonment, where the total of those terms was more than 12 months, notwithstanding that the three, eight-month terms were to be served concurrently, with release after three months, and notwithstanding that all three separate charges resulted out of the sequential occurrences on 7 and 8 September 2015.
7. At the hearing, upon sentence, the Magistrate indicated that the sentences were to act as a general deterrent and upon the basis that the community abhors domestic violence of any kind. In his application for the Safe Haven visa, completed on the applicant's behalf by a migration agent but signed by the applicant on 26 July 2016, the applicant answered that he had been convicted of a criminal offence, namely that it was an AVO charge. Whilst this was not a full answer, the offences were so interrelated that they could all be included in such a brief description, even though not enumerated. Indeed, the Magistrate referred to the applicant's being before the court for those offences, which he said were adequately described as domestic violence offences.
8. The applicant would be entirely naïve if he thought that full details of his charges would not have been available, given that he had disclosed a conviction in the generic way. This alone does not cause me to consider that the applicant deliberately sought to conceal the convictions. However, the applicant was less than frank with the police when interviewed. The applicant attempts to explain this in terms of what he perceived as harsh treatment in his current country of origin, and was afraid of authority. The fact that the applicant was not frank with police does not assist his cause. Further, the applicant made a statutory declaration on 14 February 2017, in respect of his matters with the Immigration Department, in which the applicant stated that, in his dealings with his former girlfriend on 8 September 2015, "It never became physical". This is plainly not correct.
9. In cross-examination, the applicant said he did not know why that would appear. The document was apparently prepared by an immigration agent. Again, this does not assist the applicant's cause, and it is difficult to comprehend how putting a hand around his former girlfriend's throat would not be thought to be physical. Similarly, with her wrestling with the applicant to get her phone back, and that is leaving aside the knife pointing. It does suggest that the applicant has been, perhaps, less than frank about what happened when it comes to explaining what happened, even though it would be, as I have said, naïve of him to believe that there were not full records available.
10. However, when it came to a statutory declaration made by the applicant on 26 August 2017 in respect of the criminal proceedings, the applicant refers to his assaulting Jenny and expressing his remorse. Also, before the magistrate, the salutary effect of being imprisoned, and what that entailed, and his plea of guilty, were expressed on behalf of the applicant. While there remains some doubt about the degree of frankness that the applicant perhaps demonstrated on earlier occasions, consideration of the objective factors concerning his current application has a particular force. At the hearing the applicant said that he believed he has paid for what he has done, and would never do anything like that again.

1. Psychologist, Mr Uwe Schaub, from the detention centre, interviewed the applicant for approximately 75 minutes and produced a short report by way of email dated 29 August 2017. In that report, Mr Schaub expressed the opinion that the applicant was using reasoning and appropriate strategies to help him cope with detention, and that the applicant would pose no threat to the community should he be released from detention. He confirmed this opinion in oral evidence, however, conceded that he has only seen the applicant for a short time on one occasion. At the hearing, it was put to the applicant that whilst in detention, he had not engaged in any rehabilitation program. The applicant responded by saying that he knows that what he did was wrong, and had enquired, whilst in detention, about what was available, but was informed that there was nothing additional available, to counselling.
2. The applicant had been attending meetings organised by the International Health and Medical Services. Also, the applicant had been an attendee of the coffee club and was a frequent invitee to the detention centre's welfare and engagement barbecue for well-behaved detainees. Further, the applicant was an enthusiastic student in English language classes, and so attested to by the English teacher at the centre, who stated that "The applicant can be trusted to continue on the disciplined road he is on now".
3. The applicant's first cousin provided a statement dated 12 March 2017, in which he indicated that the applicant and he lived at the same premises in Australia for more than 12 months, and knows the applicant to be a good man. He also gave oral evidence stating that he is married and his children, with whom he lives, would all provide help to the applicant if the applicant was permitted to remain in Australia. It seemed that the applicant's cousin did not have a full description of what happened with the applicant's former girlfriend, but believed that, in any event, he could not believe it of the applicant and that the events which happened were just a mistake on the applicant's part. His evidence, at least, suggests that the applicant has some family support in Australia.
4. There is a letter dated 15 March 2017 from Mr Alizada, secretary of the Kateb Hazara Association Inc., which speaks of the applicant's involvement in the community, attending community events and programs, and for being known to be reliable and hard working. He wished that the applicant's good character in the past be considered, believing that the applicant would be a good resident. This suggests that the applicant has some community involvement, even through the ethnic community to which the applicant belongs. The applicant also relied on a report of a counsellor with the ASeTTS Torture and Trauma Service, who interviewed the applicant on 29 August 2017. The applicant was referred to the service by the International Health and Medical Service at the detention centre. The applicant is described as being respectful and well mannered, dressed neatly, with adequate self-care.
5. A comment is made that the applicant has shown a capacity to develop coping strategies and a willingness to engage in counselling to improve his functioning. The report indicates that the applicant is concerned at not being able to provide some financial support for his parents in Afghanistan. Apparently the applicant's father is not well, and the applicant is concerned for their safety. The applicant is recorded to have expressed his regrets for making a mistake in the community which brought him back to detention, and that he has learnt from it. The report recommends that the applicant be placed back into the community. The Tribunal will now address the considerations under Ministerial Direction 65.

1. The first of the primary considerations is the protection of the Australian community. There is no doubt that the applicant's offending should be regarded as serious, especially having regard to the community's attitudes towards domestic violence. The Magistrate regarded the applicant's offending to be mid-range and that the prospects of the applicant being rehabilitated were somewhere in the middle. The Tribunal would consider that the applicant's offending would be towards the lower end of mid-range. There is nothing to indicate that the applicant intended any serious physical injury to his former girlfriend. There was no physical injury.
2. The grabbing of his former girlfriend by the throat was for, perhaps, 30 seconds. The pointing of the knife, being a kitchen knife which the applicant picked up from a bench in her kitchen was when they were some 4 metres apart and again was only for seconds, and was not associated with any physical contact at this time. It is true that her uncle and cousin were present and restrained the applicant. She herself wrestled with the applicant to get her mobile. After these incidents took place she, through the police, said she was sorry and did not wish to see the applicant go to jail. There was a breach of the AVO by the applicant, but it would seem that she had perhaps not been that concerned about that aspect of the matter. Nonetheless, the applicant did assault his former girlfriend and she reported this to police.

1. Violent crimes are viewed seriously, but there are certainly degrees of violence, including premeditated acts directed to causing physical harm. The activities of the applicant do not appear to fall into that last-mentioned category. The sentence or sentences imposed by the Court, given that they were concurrent, with a non-parole period of three months, and intended to act as a deterrent, could seem to support that proposition. From the time the AVO was taken out in July 2015, to the events in September 2015, reflects a period of two months' compliance by the applicant. The applicant has not been charged with any other offences, and the applicant has been in Australia since July 2013. The applicant has not been of concern in immigration detention, and indeed has been positive.
2. Whilst the applicant was in jail, he worked in the barber shop and made other contributions. It could be said that the applicant provided false information when, in his statutory declaration of 14 February 2017, he said his encounter with his former girlfriend never became physical. As mentioned, the applicant's explanation was that he did not know how that statement had appeared there, even though he signed the document. On balance, the Tribunal considers that this primary consideration, in terms of the nature and seriousness of the conduct overall, is in the applicant's favour, considering that the offences with which he was convicted all arose out of the one collection of events, and that there have never been other charges.

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

1. The circumstances of the offending are something to which the Tribunal must have regard. In assessing the protection of the Australian community, the Tribunal must also consider the risk to the Australian community should the applicant further offend or engage in other serious conduct. The Tribunal takes into account that this is the only offending for which the applicant has been charged since he has been in Australia, and that the offences did not result in any actual bodily harm. The applicant's period in jail and in detention has not given rise to any concerns. There is the report of the psychologist, Mr Schaub, and the report of the ASeTTs counsellor, which suggest that the applicant has shown remorse and is low risk. The applicant himself has expressed his remorse.
2. There is the support for the applicant expressed by his cousin and by Mr Alizada, and the materials attesting to the applicant's positive force whilst in detention. Having regard to such evidence and the fact that the applicant is not seeking permanent residency at this time, the fact that the applicant can expect support from his cousin in Australia, who has a family, and the salutary effect of the applicant's punishment, all lead the Tribunal to a conclusion that the applicant does not pose a risk of reoffending or engaging in serious conduct in the future. Accordingly, in terms of the protection of the Australian community, both in terms of the nature and seriousness of the conduct of the applicant to date, and in terms of any risk posed, this consideration is in the applicant's favour.

1. The next primary consideration is the best interests of minor children in Australia. There is no evidence of the effect of the decision on any minor children in Australia, and this includes the children of the applicant's cousin.

1. 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.
2. Accordingly, this primary consideration is in the applicant's favour. The Tribunal will now address the other considerations.

A non-refoulement obligation is an obligation not to forcibly return, deport, or expel a person to a place where they will be at risk of a specific harm.

1. Paragraph 10.1(2) provides that the existence of a non-refoulement obligation does not preclude the cancellation of a visa. The paragraph goes on to state that:

This is because Australia will not remove a non-citizen to the country in respect of which the non-refoulement obligation exists.

Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending...

1. In deciding whether or not the non-citizen should be granted a visa, the paragraph goes on to say that:

Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa were cancelled, they would face the prospect of indefinite immigration detention.

1. Section 189 permits the detention of an unlawful non-citizen. Section 196 permits the person to be detained, until that person is removed from Australia. Accordingly, if an unlawful non-citizen is being returned to the country in respect of which protection was sought, then this could suggest indefinite detention. However, there has been the more recent introduction of s 197C into the Act. This section provides that, for purposes of s 198, it is irrelevant whether Australia has a non-refoulement obligation in respect of an unlawful non-citizen. Section 195 gives the Minister a non-compellable discretion to grant an unlawful non-citizen a visa, even when none has been requested, if it is in the public interest to do so.
2. In considering the relevant provisions, the delegate, in the statement of reasons for refusing a visa, stated that s 197C was inserted in the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, as noted in the relevant explanatory memorandum, the purpose of its insertion was to 'remove any perceived connection between the removal; powers in s 198 and the assessment of Australia's non-refoulement obligations'. The explanatory memorandum stated:

Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia's non-refoulement obligations will be met through the protection visa application process or the use of the Minister's personal powers in the Migration Act, including those under sections 46A, 195A, or 417 of the Migration Act.

...

The Minister's personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so... In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia's non-refoulement obligations.

1. It is clear from the decision of North J in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (3 March 2017), that deportation, as opposed to indefinite detention of the applicant, could occur, notwithstanding Australia's non-refoulement obligations, but subject to the other mechanisms referred to. However, as the delegate has referred to, there is the alternate method of management, also in the explanatory memorandum for the bill that the Minister, it is said, intends to continue to honour Australia's non-refoulement obligations. In the context of this case, the Tribunal does not consider that the existence or otherwise, of non-refoulement obligations is significant, particularly having regard to the views I have expressed in relation to the primary considerations.

1. As previously indicated, the applicant has a first cousin who has a family in Australia. From evidence given, the applicant could anticipate some on-going support from this family. The applicant otherwise has no immediate family in Australia. There is really no real evidence that there would be an impact on family members.

1. There is no evidence to suggest that there would be any impact on his former girlfriend by this decision.

1. There is no evidence that there would be any impact on Australia business interests by the decision.

1. In conclusion, and in balancing all of the considerations, the decision under review is set aside and the discretion under s 501 of the Migration Act 1958 (Cth) should not be exercised to preclude the applicant's application for visa approval.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

.................................[sgd]...................................

[2] s 501(7)

[3] s 501(6)(a)