Intesir and Minister for Immigration and Border Protection (Migration) [2017] AATA 503 (19 April 2017)

Direction No. 65 - Migration Act 1958 - Direction under section 499, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

1. Ms Intesir has applied to the Tribunal to review a decision of a delegate of the Minister to refuse to grant him a Bridging visa under the Migration Act 1958 (Cth).
2. Mr Intesir has lived in Australia since 2001. He has held various visas, the last of which expired in 2008. Mr Intesir has been held in immigration detention since February 2016.
3. For the reasons which follow the decision under review will be affirmed.

1. Unless stated otherwise the findings of fact in these reasons is based on the evidence of Mr Intesir.
2. Mr Intesir is 33 years old. He entered Australia as a student when he was seventeen and undertook tertiary study until about 2004. He is a citizen of Bangladesh.

1. The following summary of Mr Intesir's convictions is taken from the Statement of Facts and Contentions[1] filed by the Minister in these proceedings. It accurately reflects the records contained in the National Police Certificate issued 13 December 2013 in respect of Mr Intesir.[2] Mr Intesir agrees this is an accurate record.
   • (a) On 7 January 2004, the applicant was convicted of Make U-turn at intersection with traffic lights, for which he was fined $100 and ordered to pay $61 in court costs.
   • (b) On 23 August 2004, the applicant was convicted of the following offences:
     • (i) Drive with high range prescribed concentration of alcohol, for which he was fined $600, ordered to pay $63 in court costs, and disqualified from driving for 12 months.
     • (ii) Unlicensed driver/rider (not licensed for 5 yrs) - 1st offence, for which he was fined $300.
   • (c) On 30 March 2005, the applicant was convicted of Drive while disqualified from holding a licence, for which he was fined $500, ordered to pay $63 in court costs, and disqualified from driving for 12 months. The applicant was also required to enter into a good behaviour bond for 18 months (pursuant to s.9 of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
   • (d) On 11 May 2005, the applicant was convicted of the following offences:
     • (i) Drive with low range prescribed concentration of alcohol, for which he was fined $500, ordered to pay $63 in court costs, and disqualified from driving for 12 months.
     • (ii) Alter driver licence in way calculated to deceive, for which he was fined $200.
     • (iii) Produce licence altered in manner calculated to deceive, for which he was fined $200.
     • (iv) Driver/rider state false name or address, for which he was fined $200.
     • (v) Drive while disqualified from holding a licence, for which he received a community service order of 75 hours and was disqualified from driving for 2 years.
   • (e) On 26 April 2007, the applicant was convicted of the following offences:
     • (i) Drive while disqualified from holding a licence, for which he was sentenced to 8 months' periodic detention (with a non-parole period of 4 months) and release subject to supervised disqualification from driving for 2 years.
     • (ii) Drive with high range prescribed concentration of alcohol, for which he was sentenced to 8 months' periodic detention (with a non-parole period of 4 months) and release subject to supervised disqualification from driving for 3 years.
     • (iii) Drive with middle range prescribed concentration of alcohol, for which he was sentenced to 3 months' periodic detention and disqualified from driving for 12 months.
     • (iv) Drive while disqualified from holding a licence, for which he was sentenced to 8 months' periodic detention (with a non-parole period of 4 months) and release subject to supervised disqualification from driving for 2 years.
   • (f) On 16 October 2015, the applicant was convicted of the following offences:
     • (i) Drive with middle range prescribed concentration of alcohol - 1st off, for which he was sentenced to three months' imprisonment and disqualified from driving for 12 months.
     • (ii) Drive motor vehicle during disqualification period - 1st off, for which he was sentenced to three months' imprisonment and disqualified from driving for 12 months.

1. Mr Intesir entered Australia in March 2001 as the holder of a student (subclass 560) visa which was valid until 30 January 2002. On the same day he applied for another student visa. He was granted a Bridging visa to allow him to remain a lawful resident. It was not until October 2008 that his application for a Student (subclass 573) visa was refused. His Bridging visa expired in November 2008 and he became an unlawful non-citizen. Mr Intesir remained in Australia unlawfully.
2. In February 2016, Mr Intesir applied for a Protection (Class XA) visa. This application is under consideration by the Federal Court. On 29 February 2016, Mr Intesir was taken into immigration detention where he has been detained since.
3. In May 2016, Mr Intesir applied for another Bridging (Class WE) visa. This application was refused. He made a further application for Bridging (subclass 050) visa on 14 November 2016.[3] This application was refused on 25 January 2017. The refusal decision is the subject of this application for review.

1. The grant of visas to entitle non-citizens to enter and remain in Australia is governed by the Migration Act 1958 (Cth). The stated object of the Act is "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens."[4]
2. Section 501 of the Act provides, in part:

(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.

(6) For the purposes of this section, a person does not pass the character test- if:...

(d) in the event the person were allowed ..... to remain in Australia, there is a risk that the person would:

• (i) engage in criminal conduct in Australia ...... .

1. It is to be noted that the Minister (and this Tribunal, in exercising its powers on review) is given a discretion to refuse to grant a visa if the decision-maker is not satisfied that the applicant passes the character test.
2. Section 499 provides, in part:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

...

(2A) A person or body must comply with a direction under subsection (1).

1. In exercise of the power given by s 499, the Minister issued Direction No. 65 on 22 December 2014. It provides "General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to... refuse a non-citizen's visa under section 501CA...".[5]
2. Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa:

(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 a 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 501 CA. 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) 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. The manner in which the discretion is to be exercised is set out in Paragraph 7. Informed by the principles in Paragraph 6.3, the decision-maker must take into account the considerations set out in Part B of the Direction. These considerations include both "Primary" and "Other" considerations_._ I will refer to these considerations in detail later in these reasons.
2. Paragraph 8 provides that a visa applicant "should have no expectation that a visa application will be approved." The paragraph further provides that "primary considerations should generally be given greater weight than the other considerations" and that "one or more primary considerations may outweigh other primary considerations".[6]

1. The issues which arise for consideration are as follows.
   • (1) Am I satisfied that Mr Intesir passes the "character test" as set out in section 501 of the Migration Act?
   • (2) If not, should Mr Intesir's application for a grant of a Bridging visa be refused?

ISSUE 1: AM I SATISFIED THAT MR INTESIR PASSES THE "CHARACTER TEST" AS SET OUT IN SECTION 501 OF THE MIGRATION ACT?

1. In the period of just over 11 years between July 2004 and November 2015 Mr Intesir has been convicted of the following:
   • five offences of driving with a prescribed concentration of alcohol;
   • one offence of driving whilst unlicensed;
   • four offences of driving while disqualified from holding a licence;
   • one offence of driving a motor vehicle during disqualification period;
   • altering his driver's licence in a way calculated to deceive;
   • producing a driver's licence altered in a manner calculated to deceive;
   • stating a false name and address as a driver.
2. Mr Intesir's repeated offending became so serious that at various times he was sentenced to a community service order, four periods of periodic detention and two periods of imprisonment, each of three months. His offending started less than three years after he arrived in Australia. His last convictions were on 16 October 2015, less than two years ago. For almost all of the last two years Mr Intesir was in prison or in immigration detention. The convictions were for driving with middle range prescribed concentration of alcohol and driving during a disqualification period. The Court regarded these offences as sufficiently serious to impose a prison sentence in respect of each.
3. By any standard, Mr Intesir's driving record is appalling. In addition, he has sought to deceive the authorities by altering his driver's licence and stating a false name and address. His conduct over 11 years has shown a contemptuous disregard for the laws of this country.
4. In addition to the above sentences he was disqualified from driving a motor vehicle on eight occasions. On five occasions he drove in breach of the disqualification to which he was subject. He was also convicted of offences involving dishonesty in relation to his use of his driving licence.
5. On 1 March 2017 Mr Intesir consulted Ms Aiello, a Clinical Psychologist. In a report dated 13 March 2017 Ms Aiello stated:

Mr Intesir impressed as a man regretful of his past actions and eager for the opportunity to demonstrate that he can lead a responsible life. He expressed deep fear, as well as shame at the thought of being returned to Bangladesh. Mr Intesir has advised that he is willing to take steps, including attending Alcoholics Anonymous to address the behaviours that led to his current situation.[7]

1. Ms Aiello's conclusion appears to be based on Mr Intesir's statements of his intentions. She recommended specialist counselling to address his alcohol misuse. Clearly Ms Aiello regarded this as an ongoing problem.
2. Even after Ms Aiello's opinion was taken into account, the repetitive and serious nature of Mr Intesir's offending despite the various forms of punishment imposed, together with his latest conviction being only 16 months ago, cause me to conclude that there is a risk that he will engage in criminal conduct in Australia and that, as a result, he does not pass the character test set out in the Act. As a consequence, the discretion to refuse his application for a Bridging visa is enlivened.

ISSUE 2: SHOULD MR INTESIR'S APPLICATION FOR A GRANT OF A BRIDGING VISA BE REFUSED?

1. Part B of Direction No. 65 sets out the primary and other considerations I must take into account in deciding whether or not to exercise the discretion to which I have referred.

1. The Primary considerations are set out in Paragraph 11. They are:
   • (1) protection of the Australian community from criminal or other serious conduct;
   • (2) the best interests of minor children in Australia;
   • (3) expectations of the Australian Community.

Primary consideration (a): Protection of the Australian community from criminal or other serious conduct

1. Paragraph 11.1 of the Direction provides that "decision-makers 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." Consideration is also to be given to the nature and seriousness of the applicant's conduct to date and the risk to the community should the applicant commit further offences or engage in other serious conduct.
2. Subparagraph 11.1.1 sets out further principles to which regard is to be had in considering the nature and seriousness of the non-citizen's criminal offending. These are set out in full in the schedule to these reasons.
3. In this matter, the need to protect the Australian community from the risk of harm from further serious misconduct by Mr Intesir as a driver of a motor vehicle weighs heavily in favour of refusing his visa application. The laws against driving while under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. I have already found that there is a risk that Mr Intesir will continue to reoffend. As a result of his repeated offending, including repeated driving while disqualified, I am satisfied that this risk is significant.
4. I have taken into account the evidence of Mr Intesir that, on 2 March 2017, he commenced attending meetings arranged by Alcohol and Narcotics Anonymous in an effort to reduce the risk of his resuming his past consumption of alcohol when he is released from detention. This is the only treatment for alcoholism undertaken by Mr Intesir and it is too soon to assess whether it will have any effect on his conduct. Mr Intesir did not explain why he did not seek assistance with his problems with alcohol earlier.

Primary consideration (b): The best interests of minor children in Australia

1. There is no minor child in Australia whose interests are required to be considered in this application.

Primary consideration (c): Expectations of the Australian Community

1. Clause 11.3 of the Determination provides:
   • (1) 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 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 regard to the Government's views in this respect.
2. Mr Intesir has repeatedly breached the trust of the Australian community that he would obey the laws of Australia when he is residing here. He has committed offences of a type which could endanger the physical and psychological safety of members of the community. In addition, he has acted dishonestly in altering his licence with the intention of deceiving the authorities responsible for administering the laws of this country. In these circumstances, I am satisfied that the Australian community would expect that Mr Intesir's application for a visa would be refused. This consideration weighs in favour of a refusal to grant Mr Intesir's application.

1. Under the heading "Other considerations - visa applicants", paragraph 12 of the Determination provides:
   • (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.

The sub-paragraphs providing further detail in relation to each of the considerations referred to above are set out in the schedule to these reasons.

1. There is an obvious drafting error in the opening words of this paragraph. They refer to "deciding whether to cancel a visa", rather than to deciding whether to refuse a visa. Nevertheless, it is clear that it was the intention of the Minister that this paragraph refers to an application for the grant of a visa. The paragraph is in Part B, which specifically relates to visa applications. Further, sub paragraphs (2) - (6) inclusive all refer to a visa application.

1. Mr Intesir said that he feared that he would be attacked by a political group if he returned to Bangladesh by reason of the political views he held as a teenager prior to his leaving his home country.
2. In February 2016 Mr Intesir applied for a Protection (Class XA) visa. His application is presently before the Federal Court of Australia. In these circumstances I am of the view that consideration of any non-refoulement obligation this country may have to Mr Intesir is not relevant to this application.

1. Mr Intesir does not have any immediate family members in Australia.

1. There is no evidence to allow me to make any finding in relation to any possible impact of a decision to refuse or to grant a visa to Mr Intesir on the victims of Mr Intesir's offences. There is no evidence which would enable me to determine a specific victim of any of the offences.

1. There is no evidence to suggest that a refusal to grant a visa would have any impact on Australian business interests.

1. I have given consideration to several letters of reference in support of Mr Intesir's application. These letters are from Mr Shibly, Mr Noor, Mr Rony, Mr Matin and Mr Ahsan and appear in Exhibit R1.[8] Whilst they express views that Mr Intesir is honest, of good character and is not a threat to the community, they do not address his history of offending. There is nothing in these statements which supports the granting of Mr Intesitr's application.

1. As I have already set out, I am to be informed by the Principles in Paragraph 6.3 of the Determination in exercising the discretion to grant or refuse Mr Intesir's application for a Bridging visa.
2. These Principles include that being able to come to Australia is a privilege conferred 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."
3. Unfortunately, Mr Intesir has demonstrated a propensity to breach the law and to disregard the decisions of the courts. Although he says that he will not re-offend, there is insufficient evidence for me to conclude that this will be the case.
4. Mr Intesir says that he started offending when he was young and confused about his life. I do not accept that this lessens the seriousness of his past conduct. In any event, I take into account that Mr Intesir's latest convictions were for offences committed in September 2015, when he was 32 years old.[9]
5. Over 11 years Mr Intesir has shown that he is not prepared to abide by the laws of Australia. He has not respected Australia's law enforcement framework and his past conduct shows that there is a significant risk that in future he may cause harm to members of the community. All these factors weigh heavily in favour of Mr Intesir being refused the Bridging visa he seeks. He may be granted a Protection visa, however that is not a matter for this Tribunal.
6. On the other hand, there is very little to be considered in favour of granting the visa Mr Intesir seeks. There are no children or other family members to be considered. He has not been contributing to the community since he has been in prison and in detention and prior to that time he was not in regular employment.
7. Taking into account all of the evidence and the relevant considerations set out in Direction No. 65 I have decided that the discretion to refuse Mr Intesir's application for a Bridging visas should be exercised.

1. The decision under review, being the decision of the Minister for Immigration and Border Protection made on 25 January 2017, to refuse to grant Mr Intesir's application for a Bridging (Class WE) visa, will be affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of

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

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:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
2. 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;

1. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;

1. 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

1. The sentence imposed by the courts for a crime or crimes;
2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
3. The cumulative effect of repeated offending;
4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
5. Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

11.2 Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the child, the following factors must be considered where relevant:

1. 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 no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

2. 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;

3. The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

4. 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;

5. Whether there are other persons who already fulfil a parental role in relation to the child;

6. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

7. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

8. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

12.1 International non-refoulement obligations

• (1) 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 type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

• (2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.

• (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

• (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to detennine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. 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 application were refused, they would face the prospect of indefinite immigration detention.

12.2 Impact on family members

• (1) Impact of visa refusal on immediate family members in Australia,

where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

(1) Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

(1) Impact on Australian business interests if the non-citizen's visa application is refused, noting 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.

[6] Subparagraphs (4) and (5) respectively.