//
[2018] AATA 1855
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2018-06-20
Original judgment source is linked above.
The Tribunal decides to affirm a decision of the respondent dated 21 September 2016 refusing to grant a Partner (Temporary) (Class UK) visa to the applicant under s 501 of the Migration Act 1958.
.................[sgd]..................................................
MIGRATION - refusal to grant visa - risk of applicant engaging in criminal conduct - failure to pass character test - exercise of discretion - decision affirmed.
Migration Regulations 1994 r 1.03
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Dolan and Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 42 FCR 206; 31 ALD 510
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration v Baker (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136;
Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679;
Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121
Re Beckner and Minister for Immigration, Local Government and Ethnic Affairs
Re CBYQ and Minister for Immigration and Border Protection [2018] AATA 91
Re KQHR and Minister for Immigration and Border Protection [2018] AATA 684
Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship
Secretary, Department of Social Security v Ekis (1998) 85 FCR 382; 52 ALD 246;
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016)
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466
Chambers 21st Century Dictionary, 1999, reprinted 2004
Refusal under section 501 of the Migration Act
3. Section 501(1) provides that:
"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).'
The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[7]
4. The character test is set out in s 501(6). Only ss 501(6)(c) and (d)(i) are relevant:
"For the purposes of this section, a person does not pass the character test if:
(d) in the event the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
Minister's directions regarding exercise of power under section 501(1)
"... [I] fell head over heels in Love with her, and my world revolved around her, I started to miss my own uni to be with her, I stopped hanging out with my friends and fully dedicated myself to our relationship, when I found out that my partner ... had some very complex medical conditions, I left everything to be with her, to give her my 100 per cent support, she had several admissions to hospital and I was there with her every single day to support her, as she is my world and the Love of my life, but while I was with my partner my studies at Deakin got affected, and as a result I think I dropped out of Deakin, and Deakin informed DUIAC that I'm, no longer enrolled with them, which in effect affected my visa. I found myself in alien circumstances which were un known to me, as I came from a very good strong family, and here I was dropped out of uni, but being with my Partner made my life beautiful and worth living, and supporting her during her hospital admissions became the goals of my life. The Love to my partner became my religion, and our relationship our heaven, but I knew we had to fight for our relationship to be together, as I think DIAC cancelled my visa as I was not enrolled in any uni, and while my partner was in hospital my focus was solely on her health and wellbeing, and I forgot everything else, at one stage while she was in hospital I remember as I did not had any work rights and no money I was living in my car, and at the time my license was suspended as I have made the mistake of getting a local license, whilst I did had an international full license, but when I got the local license at the time I had to start from L's on my car, i had no knowledge of such technicalities, and no money to get legal advice and the magistrate then suspended me from driving, but at that stage my partner was in hospital, and my focus and responsibility was solely on her wellbeing and supporting her, and didn't care much about myself at the time, I had no support at the time, and was not allowed to work, and I had no option but to live in my car, I cannot stress enough that without any support the whole situation was very alien to me, but my focused remained to Love and Support my partner while she was in hospital, sometimes I had to move the car locations from one parking lot to another and once the police stopped me and I explained them truthfully the situation and I had to go to court again to face charges of driving while authorisation suspended. And it wasn't long that one day when I arrived home (to my car) from my partner's hospital that I found out that my car is missing, I reported it to the police and they advised me that the dandenong city council has towed it away and I need to pay them the towing cost as my car was slightly on the footpath to get my car and belongings back, as my car was my home at the time and everything I owned and my clothes were there, I explained that to the dandenong city council ... but they in return refused to return my car unless I paid them the towing costs for the money I never had and I did not agree with them that why did they take my car, they advised unless I paid them that money within a certain amount of time they will recycle my car ... again my main focus was my partners health, and the Dandenong city council took my home (my car) from me and recycled it along with all my belongings. So now I was in the streets, without any belongings or clothes or anywhere to sleep, but I loved my partner so much and she loved me so much, that I believed that Love conquers all, and I still supported her during her long time in hospital."[11]
"15. ... committed fully to [Valentina], and neglected my university commitments to spend time with her. I took her to appointments, and I encouraged her to pursue her passions for fashion by trying to help her set up a clothing business (although this was not successful) and I provided financially for her as well where needed. [Valentina] was unable to successfully hold down employment due to her health, so went [sic] spent a lot of time together during the days and at that time, my main priority was making her happy and enjoying our relationship."[13]
(Further information regarding visa applications)
In the University of Cambridge International Examinations, QKVH was awarded 91% in a subject described as "General Paper Advanced Subsidiary".
Granted a Vocational Education and Training Sector Visa (Subclass 572).
QKVH arrived in Australia and commenced studying for a Diploma of Commerce at the Melbourne Institute of Business and Technology Pty Ltd (MIBT). He was the captain and coach of MIBT's soccer team.[14] QKVH was picked up from the airport by a family friend of QKVH's family, whom I will call "AFF" and they were in contact intermittently. AFF said in his oral evidence that QKVH was a very good boy and very focused in 2007.
Given permission to work while holding a student visa.
QKVH held various jobs between July 2007 and 2011 but, on the basis of his Statutory Declaration made on 15 March 2018, I find that, after he met Valentina, he "... was unable to commit fully to my employment because ... [Valentina] would often call me during work with an emergency and I would be required to leave to be with her, and eventually my bosses would get fed up with this and I would lose my job."[15]
QKVH met Valentina at a nightclub in Melbourne. She migrated to Australia as a baby with her family and became an Australian citizen on 26 January 1995.[16]
Commenced study for a Bachelor of Commerce at Deakin University.
QKVH met a friend, whom I will call "AH". AH completed a Bachelor of Arts in 2012 and a Masters in Media in 2017.
QKVH worked as a volunteer in the aftermath of the Black Saturday bushfires in Victoria by collecting donations as part of a Telethon conducted by his employer at the time.[17]
Based on a Bank Statement beginning 1 May and ending 31 July 2011 and on its being Statement 6, I find that QKVH and Valentina opened a joint bank account in or about January 2010.[18]
Charges heard at Frankston Magistrates Court on 17 January 2011.
Apprehended leaving David Jones store without paying for perfume and questioned by police regarding possession of other goods being a large kitchen knife, silver coloured necklace with price tag of $49.96 attached, pair of Levis blue coloured shorts, Jag grey t-shirt with price tag of $49.95 attached and two Adidas branded block-coloured sport singlet tops with tags located loosely in a bag in QKVH's possession.
Charged with Theft/Shopsteal, Possess Controlled Weapon Without Excuse and Possession of Property Suspected of Being Proceeds of Crime.[19]
Valentina was in regular receipt of Disability Support Pension payments from 10 August 2010. Together with the Pharmaceutical Allowance and the Youth Disability Supplement, they rose to $360.80 per fortnight from 21 September 2010.[20]
Incident at cinema involving QKVH, Valentina and a group of other people.
From November 2010 until June 2011, QKVH "... accessed Salvation Army Crisis Service assistance for material aid, accommodation and advice and information on several occasions between November 2010 and June 2011."[21]
AFF first came to Australia as a student in 1996 and, after obtaining a 457 visa in 1998, obtained permanent residency and then, in 2002, an Australian citizen. He and his family are friends of QKVH's family. He has known QKVH all of his life. Prior to his offending in 2010, QKVH had occasionally borrowed money from AFF but had always paid it back. In 2010, he failed to repay money on two occasions. QKVH's father told him that he had sent $55,000 to his son for study and there was nothing to show for it. AFF advised QKVH's father that he should be strict with his son and should stop sending him money. QKVH needed to learn to stand on his own two feet.[22]
On each charge: Imprisonment 2 months concurrent wholly suspended for 12 months.
QKVH said that he did not receive notification that his visa had been cancelled and attributed that to his being homeless at the time. He accepts that he should have notified the Department of Home Affairs (Department).
QKVH used credit card details that he said that he had found in a motel room to purchase goods from seven stores with six of the incidents taking place at stores belonging to one supermarket chain. The purchases ranged between $15.50 from a supermarket to $390 from an optometrist. The total value of the goods purchased was $1,984.45.
Community Based Order for 9 months to perform 75 hours.
QKVH was arrested and held on remand until sentenced on 17 August 2011. At this time, QKVH discovered that he did not hold a visa and was in Australia unlawfully.
At some time during 2011, AFF visited QKVH in detention. AFF was accompanied by his own father and he was very upset about where QKVH was going in his life.
Breach of Suspended Sentence Imposed on 17 January 2011 (2 Charges).
On both charges: Suspended sentence wholly restored. The restored term is 2 months imprisonment.
Variation of Community Based Order Imposed on 25 July 2011.
Community Based Order for 9 months to perform 75 hours to commence on 25 October 2011.
QKVH was released from prison and immediately taken to immigration detention as he did not hold a valid visa.
During immigration detention, he was prescribed medication for treatment of depression, anxiety and post-traumatic stress disorder (PTSD).
QKVH attempted to lodge an application for a Subclass 820/821 Partner Visa sponsored by Valentina but they could not afford the application fee of $2,960.
Application for Bridging Visa E (Subclass 050) refused. QKVH remained in immigration detention.
Decision affirmed by former Migration Review Tribunal but it referred the matter to the Minister for his consideration for personal intervention on the basis that QKVH met the requirements for a Partner Visa.[23]
New Pakistani passport issued to QKVH for a 12 month period.[24]
QKVH lodged an application for a Bridging Visa E (Subclass 050) on the basis he lodge a Partner Visa and was granted the bridging visa on the basis he lodged that application by 20 January 2012.
QKVH lodged combined application for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa.
Bridging Visa) E (Subclass 050) granted on condition that he did not work.
QKVH applied for removal of condition 8101 so that he could work.
QKVH wrote that he was suffering from financial hardship because his account in Pakistan had been made inactive while he was in detention Australia. He had to return to Pakistan before he could activate it. His expenses were $600 per week and his income Nil. In his application, QKVH wrote that he was suffering from anxiety and Post Traumatic Stress Disorder. Keeping busy through work was part of his treatment and recovery process.
Granted Bridging Visa E (Subclass 050). Change in conditions declined.
A delegate of the Minister declined QKVH's request because he had not identified his expenses so that they could not be assessed as reasonable or otherwise. In addition, he had stated that his partner had been supporting him and that, if he could not work, that his partner and his parents would support him. There was no evidence that they had ceased to do. In summary, the delegate decided that QKVH did not have a compelling need to work as he or she was satisfied that his reasonable expenses did not exceed his ability to pay for them.
QKVH applied for removal of condition 8101 so that he could work.
QKVH wrote that his partner had supported them both and would continue to do so but that they needed more money to support themselves and to pay their expenses. QKVH wrote that he was suffering from extreme financial hardship and referred to attached documents. They do not seem to be in the documents I have been given.
A delegate of the Minister declined QKVH's request as he had not disclosed his partner's financial records to substantiate his claim of zero income. In addition, QKVH had not given any documentary evidence that he could not gain access to his bank account in Pakistan. His bank statements showed Netbank transfers from a third party indicating that he may have other means of financial support. The support of his partner and the possibility of another source of support were, in the delegate's mind, sufficient to find that QKVH does not require financial support.
QKVH sent an email to Opening Doors at the Salvation Army enquiring whether it had sent a cheque for $760 to the land agents for his rent as they had assured him they would do. He told them that he have received another voice mail from the agents asking for the rent. Opening Doors replied that it would assist with funding his rent arrears when it received an invoice from the agent.[31]
The agent for the lessor of the flat gave QKVH a Notice to Vacate the premises for non-payment of the rent.
The landlord applied for possession, rent and bond under the Residential Tenancies Act 1997 (Vic). Orders made directing payment of a month's rent (paid by Homeground) and that weekly rent be paid at the rate of $200 until the rent owed was fully paid one month in advance.[32]
Application to change visa conditions on Bridging Visa) E (Subclass 050)
In support of his application to be permitted to work, QKVH said that it was difficult for him to provide stability and security for his partner and particularly so given her inability to work. He needed to be able to pay rent, food, transport, phone and other utility bills and could not do so without the right to work and a job. In the past, his parents had supported him financially but they were not longer able to do so as they had to provide for his siblings. They had to borrow to pay for his studies and their financial commitments are now too onerous. QKVH estimated his income as Nil and his expenses as $227.50.[33]
Application to change visa conditions on Bridging Visa) E (Subclass 050) to permit work
Condition 8101 remained in place with the consequence that QKVH did not have a right to work.
Condition 8101 remained in place with the consequence that QKVH did not have a right to work.
QKVH obtained a prescription for the medication that he had been prescribed while in detention. He stole medication from a pharmacy after he was told that he was not eligible to receive medication under Medicare.[42]
Application to change conditions to permit work refused.
QKVH stole drinks from a supermarket and threatened the supermarket's security officer with a pocket knife.
Charged with Shop Theft, Threat to Inflict Serious Injury and Assault with a Weapon.
QKVH was permitted to stay at Hanover Housing from 2 to 29 May 2013. He was not permitted to stay beyond that time as he could not pay rent.[43]
QKVH collapsed in a state of unconsciousness after smoking synthetic marijuana after being offered a bong by a neighbour. Although he had occasionally smoked marijuana, this was the first time he had tried synthetic marijuana.[44]
Condition 8101 no longer imposed and QKVH had a right to work in Australia.
Community Correction Order for 12 months. QKVH was required to undergo a mental health assessment and undergo treatment as directed.[48]
At some time during 2013, QKVH's father visited Australia and stayed with his son. AFF saw both of them together and QKVH told him about his being charged with assault with a weapon. While QKVH had been very upset when he visited him in the Remand Centre but the fact that his father visited him made a big change in him, AFF said. He was a changed man after his father's visit. He was remorseful Whereas he was not willing to have QKVH in his house in 2011, AFF invited QKVH to stay with him in his house in 2013.
The Migration Review Tribunal remitted the application for a Partner (Temporary) (Class UK) visa with a direction that QKVH met the relevant criteria as they were in a spousal relationship.[49]
Employed by a financial mercantile agency with a credit provider licence (Agency). The Agency buys debts from various financial institutions and seeks to recover those debts. QKVH was employed as an Account Representative. He is required to contact the debtors to work out a repayment plan that takes account of financial hardship claims and is also required to refer matters for the commencement of debt recovery proceedings in the courts and bankruptcy proceedings as well as various administrative duties.
QKVH reported "working condition problems" to his medical practitioner.[51]
Mr Michael Hodgman, psychologist, reported that QKVH had suffered racial taunts at a railway station and then a series of racial vilifications from his work employers. Victorian WorkCover accepted his claim for compensation.[52]
QKVH's application for a partner visa refused and his Bridging Visa E (Subclass 050) cancelled as a consequence. He was placed in immigration detention at the Maribyrnong Immigration Detention Centre (MIDC).
Application for Partner Visa lodged on 20 January 2012 refused.
A delegate of the Minister was not satisfied that QKVH and Valentina provide each other with companionship and emotional support or that they have a joint commitment to a shared life. She was not satisfied that they had a genuine and continuing relationship and not defacto partners within the meaning of s 5CB of the Migration Act.[54]
The MIDC acknowledged QKVH's contribution to its Programmes and Activities when he gave lessons on Debt Management between 7 and 28 December 2016. Each lesson covered a different aspect of debt management.[55]
"(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be risk that the person would engage in the future in the specified conduct set out in section 501(6)(d)"[56]
After repeating the effect of s 501(6)(d)(i) of the Migration Act at cl 6.1(1) of Annex A, the Minister goes on to make the observation that:
"The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded."[57]
"".. Interpreting a composite phrase by dissecting it into its component words and seeking a meaning for each has, however, long been identified as an inappropriate method of construing such a phrase ..."[58]
I am not concerned with a phrase as such but I will bear that in mind as I look first to the meaning of "criminal conduct". Consistently with the statement in cl 6.1(2) of annex A of the Ministerial Direction, the reference to "criminal conduct" in s 501(d)(i) is not limited to conduct which has led to a criminal conviction. It extends to conduct "... for which a criminal conviction could be recorded ...". As the Full Court of the Federal Court said in Minister for Immigration v Baker after considering the various references in the Migration Act to "criminal convictions" and to "past criminal conduct" and the like, the reference to "criminal conduct":
"... is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, 'Criminal Allegations in Civil Cases' (1991) 107 LQR 194."[59]
"... 1 the chance or possibility of suffering loss, injury, damage, etc; ...".[61]
Therefore, having regard only to the ordinary meaning of the word "risk", the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH's engaging in criminal conduct in Australia. The word "risk" must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word "risk" cannot be seen to mean simply a "chance or possibility" of a person's engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, "... is more than a minimal or remote chance ..." of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word "risk" is not qualified by any adjective such as "significant", "substantial", "real", any of which might have done so.
" The Administrative Appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example, they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether Mr Beckner's crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. ..."[64]
25. I will begin with cl 6.2(1) for it is a cornerstone of Direction No. 65:
"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 or 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."
"(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 noncitizen's visa should be cancelled, or their visa application refused."
"Informed by the principles in paragraph 6.3 above, a decision-maker:
"... Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved."
"a) Protection of the Australian community from criminal or other serious conduct;
"When considering protection of the Australian community, 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
A.1 The nature and seriousness of QKVH's conduct to date
"a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
A.2 Risk to the Australian community should the non-citizen commit further offences or engage in 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 risk 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:
(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."
"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."
" In substance this consideration is adverse to any applicant. As the Minister submits it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]- [66])."[74]
" In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that 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, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.
This ground of review does not attack the statements in Direction no. 65. In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement."[76]
"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."
He then moved to paragraph 9.3 and the Minister's statements about what the Australian community expects. In doing so, he has used the words adopted in paragraph 9.3 and, in particular, has used the word "may". The word "may" is the word used by the Minister in paragraph 9.3. He has not used a word such as "must".
"61. If Ogden[[81]] has any significance for this appeal, it is the statement of their Lordships ([1970] AC at 127):
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must be beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
62. Those remarks apply a fortiori where what is involved is the translation of remarks construing one statute to the construction of another. They also point to a significant difference in the tasks of the courts in applying the common law and in construing statutes.
63. The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgments. The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.
64. The distinction is usefully expressed in the following passage from Judge Posner's work The Problems of Jurisprudence_, 1990, page 248:_
Translation may be imperfect and alter the meaning of the original doctrine; nevertheless many common law doctrines have a stable meaning, though expressed in a variety of different ways. We are not afraid that we would lose the meaning of negligence if we put it in different words from those used by Learned Hand, or William Prosser, or some other authoritative expositor of the concept.
Statutory law differs in that the statutory text - the starting point for decision, and in that respect (but only that respect) corresponding to judicial opinions in common law decision making - is in some important sense not to be revised by the judges, not to be put into their own words. They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute - that is, interpret the statute. (There is a sense in which common law judges 'interpret' common law, but it is the sense in which 'interpretation' means 'understanding'.)"[82]
"... Analogy - not in the strict mathematical sense, but in the sense of resemblance of facts - has long had a great place in our system of law. It is at the base of the method of precedent in the common law. ... [R]easoning by analogy is a rather different process in the development of the common law from its use in the interpretation and application of a statute or of the Constitution. Sir Owen Dixon, in an extra-judicial address he delivered in 1933 (reprinted in Jesting Pilate (1965), p. 13), said of the common law that
'it has undergone a continuous growth and expansion accomplished by continual deduction and induction. By deduction, a new application is given to an existing principle; many single instances having been thus produced, in course of time a new or developed principle is discerned in them and expounded. By this process of imperfect induction, the secondary principle is established as part of the doctrine of the common law, and plays its part in turn in the production of still more doctrine'.
This, I would respectfully say, is a wholly apt description of the processes of the common law. It points I think the contrast with expositions of the effect of statutes and codes. The process is then one of deduction and subsumption, rather than of imperfect induction. The words of the enactment provide the major premise. The result is not, or ought not to be, the establishment of any secondary principle embodied in new words, but at most the provision of an illustration of the effect in a new setting of the original principle expressed in the original words."[84]
" Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect 'a broad consensus of opinion' (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker's belief based on experience. Evidence will rarely be of any practical assistance.
It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.
Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief."[86]
"... the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. ..."[88]
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: paragraph 6.1(1);
(2) In determining whether to exercise the discretion, a decision-maker must have regard to the specific circumstances of the case: paragraph 6.1(3); and
(3) The principles set out in paragraph 6.3 reflect community values and standards in determining whether the risk of future harm from a non-citizen is unacceptable: paragraph 6.2(1).
59. The Principles set out in paragraph 6.3 are based on the notions that:
(1) Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1);
(2) Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraphs 6.3(3)-(6); and
(3) Regard must be had of the consequences of a visa refusal or cancellation on minor children and other immediate family members: paragraph 6.3(7).
"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."
"The existence or non-existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. 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 non-refoulement obligation exists."[92]
"Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled)."
"... it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked."
"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".
"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."
"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."
I certify that the preceding eighty two [82] paragraphs are a true copy of the reasons for the decision herein of
...................[sgd]...............................................
[1] As the applicant made a non-refoulement claim in his written evidence, I made an order under s 35 of the Administrative Appeals Tribunal Act 1975 to the effect that he will be known as "QKVH" in these proceedings.
[2] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[3] Migration Act; ss 5 and 29(1)
(1994) 50 FCR 555
(1993) 42 FCR 206
(1997) 73 FCR 187
(1991) 30 FCR 49
(1998) 85 FCR 382
(1968) 117 CLR 390
(1986) 162 CLR 24