.................................[SGD]...................................

Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsection 501K(2) of the Migration Act 1958 (Cth).

MIGRATION - Migration Act 1958 (Cth) - refusal of temporary protection visa under s 501(1) because applicant did not pass character test - whether applicant would engage in conduct identified in s 501(6)(d)(i) - Direction No. 90 - Annex A - primary considerations - protection of the Australian community - family violence - best interests of minor children - expectations of the Australian community - other considerations - international non-refoulement obligations - effect of impediments - impact on victims - links to the Australian community - decision set aside and remitted

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

Crimes Act 1900 (NSW) s 59

Migration Act 1958 (Cth) ss 499, 500, 501

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114

Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273

PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235

QKVH and the Minister for Home Affairs [2018] AATA 1855

WKCG and Minister for Immigration and Citizenship [2009] AATA 512

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 75 (entered into force 26 June 1987)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into forced 22 April 1954)

Direction No. 90 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 April 2021).

Guidelines on Minister's detention intervention power - section 195A of the Migration Act 1958, Department of Immigration and Border Protection, Australian Government - instruction reissued on 18 August 2017

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Minister for Immigration and Border Protection's residence determination power under section 197AB and section 197AD of the Migration Act 1958, Department of Immigration and Border Protection, Australian Government - instruction reissued on 21 October 2017

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)

1. The Applicant, YKWD, is a 44-year-old male who is a citizen of the Islamic Republic of Iran.

2. On 12 November 2021, a Delegate of the Minister[1] (the Delegate) made a decision to exercise their discretion under subsection 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant a Temporary Protection (Class XD) visa (the visa)[2] to the Applicant on the basis that he did not pass the character test. The Delegate determined the relevant ground of the character test in the Applicant's case was subparagraph 501(6)(d)(i) of the Act, which states:

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

3. On 16 November 2021, the Applicant filed an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

4. The matter was heard by the Tribunal on 19 and 20 January 2022. Legal representatives for the Applicant and the Minister appeared via videoconference. The Applicant attended the hearing and provided oral evidence via videoconference from Villawood Immigration Detention Centre with the assistance of an interpreter of the Farsi language.

5. Subsection 501(1) of the Act states:

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person satisfies the character test.

Note: Character test is defined by subsection (6). [emphasis in original]

6. Subsection 501(6) of the Act provides:

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

(a) the person has a substantial criminal record (as defined by subsection (7)); or

(aa) the person has been convicted of an offence that was committed:

(i) while the person was in immigration detention; or

(ii) during an escape by the person from immigration detention; or

(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab) the person has been convicted of an offence against section 197A; or

(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii) that the group, organisation or person has been or is involved in criminal conduct; or

(ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i) an offence under one or more of sections 233A to 234A (people smuggling);

(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

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

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e) a court in Australia or a foreign country has:

(i) convicted the person of one or more sexually based offences involving a child; or

(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(v) a crime that is otherwise of serious international concern; or

(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test. [emphasis added]

7. I note the Minister contends the only reason the Applicant does not pass the character test is due to subparagraph 501(6)(d)(i) of the Act. I am also satisfied there is no evidence to show any of the other provisions in subsection 501(6) of the Act are enlivened in this matter.

8. The power of the Tribunal to review the Delegate's decision to refuse the Applicant's visa is provided by subsection 500(1) of the Act. The Minister has given written directions about the exercise of the power to review the decision under subsection 499(1) of the Act, and subsection 499(2A) requires these directions must be complied with.

9. The relevant direction is Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction no. 90), which commenced on 15 April 2021.

10. The objectives of the Act are set out in the Preamble to Direction no. 90 and include at paragraph 5.1:

(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa...

(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test... Where the discretion to refuse to grant...the visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion...

11. Annex A of Direction no. 90 explains the application of the character test: paragraphs 6 and 6.1 in section 2 relevantly state:

6 Risk in regards to future conduct (section 501(6)(d))

(1) A person does not pass the character test if, in the event that the person were allowed to...remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act...

(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...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 [sic] 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

• 6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

(1) A person does not pass the character test if, in the event that the person were allowed to...remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.

(2) 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. [emphasis added]

12. Section 6 of Direction no. 90 states:

6. Exercising the discretion

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

13. The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to refuse a visa under section 501 of the Act. These principles are:

(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

14. Primary considerations are listed in section 8 of Direction no. 90 as follows:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia; and

(4) expectations of the Australian community.

15. Other considerations are set out at section 9 of Direction no. 90. These include (but are not limited to):

(1) international non-refoulement obligations;

(2) extent of impediments if removed;

(3) impact on victims;

(4) links to the Australian community, including:

(a) strength, nature and duration of ties to Australia; and

(b) impact on Australian business interests.

16. Section 7 of Direction no. 90 states that in applying the primary and other considerations: information and evidence from 'independent and authoritative sources' should be given appropriate weight; primary considerations should 'generally' be given greater weight than the other considerations; and one or more primary considerations 'may outweigh other primary considerations.'

17. The issues for determination by the Tribunal are:

• whether the Applicant passes the character test in subsection 501(6) of the Act and, in particular, in the event the Applicant is allowed to remain in Australia, whether there is a risk he would engage in criminal conduct in Australia (subparagraph 501(6)(d)(i)); and
• if the Applicant does not pass the character test, whether the discretion to refuse his visa should be exercised.

**ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST IN SUBSECTION 501(6) OF THE ACT?

18. The Applicant was born in [redacted - place of birth] in the Islamic Republic of Iran in [redacted - year of birth]. He identifies as being 'of Arab ethnicity and a Shi'a Muslim'.[3]

19. The Applicant studied to high school level and was employed 'as a mechanic assisting his father from 1990 to 2007; as a retailer in a market shop from 2007 to 2012; and as a partner in a coffee shop business from January to February 2012'.[4]

20. In February 2012, the Applicant decided to leave Iran due to fear of persecution on the basis of his Arab ethnicity, religious identity and imputed 'political and religious activities'.[5] In particular, the Applicant had concerns for his personal safety in early 2012 due to being constantly harassed by police and the Basij,[6] and detained and beaten by the police on two occasions while operating a coffee shop.[7]

21. On 11 May 2012, the Applicant arrived in Australia as an unauthorised maritime arrival and was detained in immigration detention. He was granted a Bridging E (Subclass 050) visa (Bridging visa) on 13 September 2012 and released from detention to live in the Australian community.

22. The Applicant spent time in Melbourne and Sydney but experienced difficulties due to his 'poor proficiency' in English and problems finding continuing employment.[8] He subsequently relocated to a large regional town in New South Wales (NSW) where he was employed in the local abattoir. However, this employment ceased after the Applicant's protection visa was refused by the Refugee Review Tribunal in 2015 and he no longer had 'a visa with working rights'.[9] After this, the Applicant worked two jobs, as a chef in a restaurant and as a cleaner, until he was arrested in February 2017.

23. The Applicant commenced a relationship with Ms 'A', an Australian citizen, in 2015. They married in March 2016 and their son, 'D', was born in December 2016. They remain legally married but separated following the Applicant's arrest by police on [redacted] February 2017.

24. The Applicant did not apply for bail after being arrested on [redacted] February 2017 and he was held on remand until his hearing in the NSW Local Court on [redacted] September 2017. Since his sentencing hearing, the Applicant has been detained at Villawood Immigration Detention Centre.

25. The Applicant's criminal record is outlined in an Australian Criminal Intelligence Commission report dated 8 July 2020, which lists the following conviction in the NSW Local Court:

• Date: [redacted] September 2017. Offence: 'Assault occasioning actual bodily harm (DV)-T2', Court result: section 9 bond, 8 months.[10]

26. Documents before the Tribunal show this conviction was one of four offences the Applicant was charged with following incidents between he and Ms 'A' on [redacted] February 2017 and [redacted] February 2017.[11] Relevantly, three of the four offences were dismissed by the Magistrate in the NSW Local Court on [redacted] September 2017:

• Date of offences: [redacted] February 2017. Offence: 'Common assault domestic violence related', Court result: Dismissed. Offence: 'Stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence)', Court result: Dismissed.
• Date of offence: [redacted] February 2017. Offence: 'Common assault domestic violence related'. Court result: Dismissed.[12]

27. There is no evidence before the Tribunal that the Applicant either has a criminal history in Iran or has engaged in any other criminal conduct in Australia.

The Applicant's application for a protection visa in Australia

28. The Applicant has had a protracted history of applying for a protection visa in Australia.

29. On 27 August 2012, the Applicant applied for a Protection (Class XA) visa that was refused by a Delegate of the (then) Minister for Immigration and Citizenship on 1 August 2013.[13] This decision was affirmed by the (then) Refugee Review Tribunal on 30 April 2015.[14]

30. On 22 May 2015, the Applicant filed an application for judicial review in the Federal Circuit Court of Australia (the Federal Circuit Court). On 18 June 2015, this appeal was dismissed by a Registrar at the Federal Circuit Court because the Applicant 'failed to attend the hearing'.[15]

31. Following the judgement by the Full Federal Court of Australia (the Full Federal Court) in Minister for Immigration and Border Protection v BJC16,[16] the Applicant's matter was remitted by consent to the Migration and Refugee Division of the Tribunal on the basis that the Federal Circuit Court decision was invalid because it had been made by a Registrar.[17]

32. On 18 June 2020, a Member of the Migration and Refugee Division of the Tribunal determined that the Applicant is 'a person in respect of whom Australia has protection obligations under the Refugees Convention'[18] and remitted the matter to the Minister for reconsideration with the direction that the Applicant satisfies paragraph 36(2)(a) of the Act.[19]

33. On 14 September 2021, the Department of Home Affairs (the Department) wrote to the Applicant with a notice of intention to consider refusal of his visa under section 501(1) of the Act. The Department's letter specifically noted the Applicant's criminal history and the NSW Police Facts Sheets, and invited him to comment on 'information which indicates that [he] may not pass the character test'.[20]

34. On 22 October 2021, the Refugee Advice and Casework Service (RACS) provided a written response to the Department's notice on behalf of the Applicant. RACS made submissions that the Applicant does not fail the character test and 'the correct and proper application of Direction 90 does not lend itself to the exercise of the discretion to refuse [the Applicant's] protection visa'.[21]

35. The Minister's Delegate then decided on 12 November 2021 to exercise their discretion under subsection 501(1) of the Act to refuse to grant the visa to the Applicant. The Delegate provided reasons for the Applicant not passing the character test in subsection 501(6) of the Act and their decision to exercise their discretion to refuse to grant the Applicant a visa.[22] It is this decision that is being reviewed by this Tribunal.

36. Subsection 501(1) of the Act states that the Minister may refuse to grant a visa if he is not satisfied the person satisfies the character test: it is accepted that the use of the word 'may' allows the Minister to exercise discretion in his refusal to grant a visa.

37. The language of subsection 501(6) of the Act is set out in absolute terms: that is, a person does not meet the character test if any of the circumstances in paragraphs 501(6)(a)-(h) apply; and, otherwise, they 'pass the character test'.

38. As set out in paragraph 7 above, the Minister accepts - and I agree - the only provision in subsection 501(6) of the Act that applies to the question of whether the Applicant passes the character test is subparagraph 501(6)(d)(i): that is, in the event the Applicant is allowed to remain in Australia, whether there is a risk that he would engage in criminal conduct in Australia.

39. Annex A of Direction no. 90 (section 2, paragraphs 6 and 6.1) provides that the risk of criminal conduct must be assessed in relation to the Applicant's future conduct and based on 'evidence suggesting that there is more than a minimal or remote chance' that he would engage in conduct 'for which a criminal conviction could be recorded' [emphasis added].

40. In my consideration of the legislation and the Applicant's risk of engaging in future criminal conduct, I have had regard to the following decisions made by this Tribunal and the Federal Court of Australia (the Federal Court).

41. Although contemplating a different test of risk, the decision by Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship provides relevant insight into factors I should consider in this matter. In determining whether a person constitutes a 'danger to the Australian community' for the purposes of article 33(2) of the Refugees Convention, Deputy President Tamberlin stated:

The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

The person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:

...

Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.[23] [emphasis added]

42. In QKVH and the Minister for Home Affairs, Deputy President Forgie considered the concept of 'risk' used in subparagraph 501(6)(d)(i) of the Act and stated:

The word "risk" is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:

"... the chance or possibility of suffering loss, injury, damage, etc; ...".

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... 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.

There is no question that QKVH has engaged in criminal conduct in the past but I am required to assess the risk of his doing so if permitted to remain in Australia in the future. His past conduct does, however, inform the future as do his actions and behaviour since his last offending...[24] [emphasis added]

43. More recently, Perry J in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs considered the 'threshold question for the Minister in determining whether the discretion under s 501(1) was engaged' was 'whether there was a risk that [EPU19] would engage in criminal conduct' in Australia'.[25] His Honour observed the Minister:

...correctly understood that, while the criterion is the risk of "criminal conduct" (ie, "reoffending"), a probabilistic assessment is capable of admitting a range of inputs which fall short of criminality but may still rationally bear upon the assessment of whether a person "might" engage in criminal conduct in the future.[26]

44. Perry J accepted that an assessment by the Minister of a person's likelihood to reoffend in the future allowed consideration of factors that may explain their past and recent conduct, their 'remorse' and 'rehabilitation'.[27]

45. In applying the provisions of the Act and Direction no. 90, and assisted by relevant case law, I consider the assessment of risk that the Applicant would engage in criminal conduct requires:

• evidence there is 'more than a minimal or remote chance' the Applicant would engage in conduct 'for which a criminal conviction could be recorded';
• acceptance that some level of risk is inevitable as rehabilitation is 'never certain'; and
• the level of risk stipulated in the Act and Direction no. 90 is not required to be 'significant, substantial, real'.

46. The assessment of risk relates only to the Applicant's 'future conduct'. However, the process of assessing risk involves evaluating and weighing factors that may indicate a risk of the Applicant engaging in future criminal conduct as well as factors that would be expected to protect the Applicant from future criminal conduct. This means I should consider and have regard to all the circumstances of the Applicant's case, including his:

• criminal history including the seriousness and nature of his crimes, the length of his sentence, and any mitigating circumstances;
• remorse and rehabilitation; and
• previous general conduct including his 'actions and behaviour since his last offending'.

47. The Applicant was convicted of a single offence, 'assault occasioning actual bodily harm', in the NSW Local Court on [redacted] September 2017. This conviction relates to events between the Applicant and his (then) wife, Ms 'A', late in the evening of [redacted] February 2017 and the early morning of [redacted] February 2017.

48. I have considered the extensive and detailed documentation from the NSW Police and the Local Court of NSW, a written statement by the Applicant dated 29 July 2020, a statutory declaration by the Applicant dated 15 December 2021, the Applicant's oral evidence to the Tribunal, a statutory declaration of Ms 'A' dated 10 January 2022 and Ms 'A''s oral evidence at the Tribunal hearing. A summary of the facts of this event is that:

• The Applicant was under significant stress at the time due to:
  • working two jobs;
  • Ms 'A''s mother and Ms 'A''s young child from a previous relationship were living with Ms 'A' and their newborn baby at their home;
  • providing financial support to Ms 'A''s mother and Ms 'A''s four older children from Ms 'A''s previous relationships;
  • uncertainty about the status of his visa and threats (from several sources) that he could be reported to police;
  • frustration as he did not speak English very well, and was not always able to communicate accurately with Ms 'A'; and
  • verbally arguing with Ms 'A' about her smoking cigarettes in front of their newborn (then two-month-old) baby.
• Late in the evening on [redacted] February 2017, the Applicant and Ms 'A' were eating dinner while the children were asleep, and they had a verbal argument about Ms 'A''s 16-year-old son consuming alcohol purchased by the Applicant. There was a physical altercation in which the Applicant spat and scratched Ms 'A' on the neck.
• The Applicant departed their home and Ms 'A' called the police, and the Applicant was arrested when he later returned home.

49. The transcript of the NSW Local Court shows the evidence of the Applicant and Ms 'A' provided different versions about the physical altercation. The Applicant, in his evidence to the Tribunal, maintained that Ms 'A' became 'furious and threateningly hovered' over him during the verbal argument, he pushed her away and, in doing so, may have 'accidently given her minor scratches'.[28] He explained that he spat out his mouthful of drink in surprise at a comment made by Ms 'A' during the verbal argument.

50. In weighing the evidence, the Magistrate convicted the Applicant of 'assault occasioning actual bodily harm (DV)-T2', stating that he was satisfied beyond reasonable doubt that the Applicant had engaged in 'spitting' and 'grabbing of the neck' of Ms 'A'.[29] The Magistrate made the following remarks when sentencing the Applicant:

... I take into account...the reasoning behind you being convicted of the assault occasioning actual bodily harm. It was more a reckless act than a deliberate act in relation to the actual bodily harm aspect on the scratches on the neck but the spitting was a deliberate act. I loathe and detest people who spit on other people because it is an act of denigration, an act of humiliation and it has no justification of any sort whatsoever, ever, in any circumstances....

However I accept that things may have been heightened emotionally if the child [D] was as ill as you say. I accept that you were doing two jobs. Those sorts of jobs are usually done at unsociable hours. And, of course, if you were on the immigration watchlist as may have been occurring because of the expiration of your visa, I do not know precisely when that occurred, but this country has the delightful habit of keeping people who come from another country in suspense for a long, unjustifiably long periods of time.

So all sorts of, undoubted, emotions going on. There was this difference between you and [Ms A] in relation to where she could and couldn't smoke or shouldn't smoke and those sorts of things. [Ms A] said she knows you do not like it and she does not smoke around the children. I think her evidence on that was pretty strong as well. Clearly things got out of hand. The Crown has conceded that you do not have a record here and you are a person of otherwise good character...

However domestic violence is wrong in all circumstances all the time, everywhere, without exception, even if things do get out of hand it does not justify the infliction of violence upon a domestic partner, let alone anybody else for that matter. Noting that you have been in custody but mainly because you didn't make an application for bail and mainly because if you had and bail was granted then the Immigration Department would have snaffled you in any event.

... But in all the circumstances I am of the opinion that it was an opportunistic act, it was not planned. It was of short duration, clearly it had an impact upon [Ms A]... The most appropriate way forward on the hope that you might be released from immigration detention once the processes are gone through. THE MATTER IS PROVEN, YOU ARE CONVICTED, THE SENTENCE IS DEFERRED, CONDITIONALLY, UPON YOU ENTERING A BOND UNDER S 9 TO BE OF GOOD CHARACTER FOR EIGHT MONTHS.

That reflects the amount of time that you have already spent in custody. As I said it was primarily on the basis that you did not apply for bail...

So you are on a bond to be of good character for the next 8 months from today.[30] [emphasis in original]

51. The conditions of the Applicant's bond under subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were that he 'must be of good behaviour and appear before the court during the bond term if required'.[31] The Applicant was also subject to an Apprehended Domestic Violence Order (AVO) for six months requiring that he not assault, threaten, stalk, harass or intimidate Ms 'A' and not destroy or damage any of her property.[32] This AVO did not include their son, 'D'. There is no evidence the Applicant did not comply with either the conditions of his bond, which expired on 13 May 2018, or the conditions of the AVO, which concluded on 13 March 2018 (noting he was in jail on remand and then Villawood Immigration Detention Centre during the periods of the AVO and bond).

52. In considering the severity of this offending by the Applicant within the context of his relationship with Ms 'A', I observe the following written evidence provided by Ms 'A':

I have known [the Applicant] since 2015. I have known him to be a decent, caring and thoughtful human being. We started our relationship in late 2015.

[The Applicant] and I loved each other. He cared for me and my children from previous relationships and treated me well...

Looking back at the incidents that happened back in February 2017 as a result of which he was arrested, I am not condoning his actions but I would say those were isolated events and [sic] consequence of arguments not uncommon in regular married lives. We came from very different cultural backgrounds. I guess some cultures have different and animated emotional expressions and arguments that we are generally used to. I also think the stress about work and visa status he was under contributed to his reactions as well.

I consider those incidents in February 2017 as out of character for [the Applicant]. I have known him for a long time and he treated me in a caring and responsible manner before the events that he was charged for. Of course we had our relationship issues and at times it felt controlling that is why it did not eventually last. But I still consider him to be a person of good character and I do not consider him to be of any danger to the Australian community. I never thought he would face deportation or prospect of long-term detention because of what happened between us.[33]

53. In a statutory declaration dated 15 December 2021, the Applicant also acknowledged the differences between his and Ms 'A'' cultural backgrounds, and expressed his sorrow and remorse for his behaviour:

I understand that [Ms 'A'] and I come from very different cultural backgrounds and my way of expressing myself or my frustrations might have come across sometimes as rude or offensive. It is more so because of the language barrier, my lack of proficiency with English at the time made me more frustrated when I could not make my concerns understood.

...

I am deeply sorry and remorseful about the offence [assault occasioning actual bodily harm (DV)-T2], this is very much out of character for me to behave this way which I vow never to repeat again even in stressful circumstances.[34]

54. Prior to his arrest on [redacted] February 2017, the Applicant was employed in two jobs (albeit this appears to have included a period after his Bridging visa expired) to support his and Ms 'A''s family. His evidence is that he worked in various positions (including at an abattoir, as a chef and a cleaner) while living in the Australian community between September 2012 and February 2017.

55. The Applicant has been detained since [redacted] February 2017. He was held on remand from [redacted] February 2017 to [redacted] September 2017 as he did not apply for bail. Since his charges were heard and decided by the NSW Local Court on [redacted] September 2017, he has been detained at Villawood Immigration Detention Centre. This means that he has been detained for almost five years.

56. While in detention, the Applicant has undertaken English lessons and worked at the coffee shop at Villawood Immigration Detention Centre. In his statutory declaration dated 15 December 2021, the Applicant wrote:

If I was released into the community, there is no doubt that I would be a productive member to society. I am someone who is inherently hard-working and I am motivated to contribute positively to society. Since 13 June 2018, I have worked at the coffee shop at Villawood. I understand that only individuals who are considered to be responsible and non-violent are provided the opportunity to engage in that work. I work three hours each day between Monday to Friday. As such, I do not think it will be difficult for me to transition to full-time work if I were released into the community.[35]

57. The Applicant provided certificates from Serco supporting his qualification in food safety and his employment at Villawood Immigration Detention Centre.

58. In his written and oral evidence, the Applicant confirmed that he has not engaged in any violent offending and considers himself to be 'very respectful towards women'.[36] He stated that he comes from a large and respectable family in Iran, and violence in any environment is unacceptable.

59. The Applicant filed ten written character references with the Tribunal and five people gave oral evidence at the hearing in support of him including his ex-wife, Ms 'A'. This oral evidence was particularly compelling as it showed the genuine care, support and respect attributed to the Applicant from people in the Australian community.

60. All of the people providing character references knew about and understood the circumstances of the Applicant's offending. In oral and written evidence, witnesses spoke about the Applicant's 'friendly and sensible nature', his calmness and actions as a 'role model for other detainees', his decency as a human being, his 'very respectful behaviour towards everyone, particularly women', his genuine desire to 'make a good life for himself and his son', and his remarkable empathy showing 'he is someone who cares deeply about the people around him'.[37] Two witnesses (a husband and wife) told the Tribunal that, if the Applicant is released from Villawood, they would offer to open their home for him to stay. One witness commented on their view that the Applicant would excel in the Australian community, noting the 'unnatural environment' of Villawood is 'more stressful' than living in the community.

61. The written evidence of Ms 'A' about the Applicant was strongly supportive of his conduct and good character. She stated:

I do not feel unsafe about or around [the Applicant]. I have moved on with my life and have re-partnered. [The Applicant] is understanding and respectful towards my current relationship. I now consider [the Applicant] as a friend and would look forward to his grant of visa and release from detention so that we can co-parent [their son, 'D'] in a positive, co-operative and amicable manner.[38]

62. In oral evidence to the Tribunal, Ms 'A' described how the Applicant took on the role of supporting her other children 'without a problem' when they married. She acknowledged openly her role in the breakdown of their relationship, and the substantial issues caused by the language barrier and their cultural differences. Ms 'A' spoke about the emotional support the Applicant continues to provide her as a friend and said that they speak by telephone every couple of days.

63. The Applicant's son, 'D', was born in December 2016 and the Applicant has had minimal physical contact with 'D' since being detained on [redacted] February 2017. Despite this, the Applicant has developed a very close and loving relationship with his son. His son calls the Applicant, 'Dad', and they speak and play games via skype every two to three days. The Applicant sends presents to 'D' on special occasions and provides as much support as he is able to. This situation is clearly to the credit of both the Applicant and Ms 'A', who also wants the Applicant to be involved in co-parenting their son.

64. The Applicant wrote about his parental role in his statutory declaration dated 15 December 2021:

My son ['D'] is growing up without me and I am afraid that my son will not experience the support and security of a father growing up. I am very close with him and love him to bits. He is my sole reason of survival... Since being detained, I have had very limited direct contact with my son who is currently in the care of my ex-wife. If released from detention, there is no doubt that I would provide my son with financial assistance. I understand that it would otherwise be very difficult for my ex-partner to raise ['D'] without my assistance.[39]

65. In relation to rehabilitation, although the Applicant has not participated in specific courses related to domestic violence due to his detainment at Villawood Immigration Detention Centre, he has stated a willingness to do so if released into the community.

66. The Applicant has engaged in regular counselling with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) since October 2018. A comprehensive psychological assessment report of the Applicant by a clinical psychologist at STARTTS dated 2 June 2021 set out the details of his family life, his experiences of trauma in Iran and while travelling to Australia, and the negative impact of continued detainment on his psychological state.[40] This assessment is supported by reports written by the Applicant's STARTTS counsellor dating between 27 February 2020 and 28 November 2021.

67. Based on the evidence, I make the following findings of fact.

68. The Applicant has been convicted of a single offence following an incident between him and his (then) wife on [redacted] February 2017. This offence is considered to be very serious as it constituted assault occasioning actual bodily harm in the context of domestic violence.

69. The Applicant was sentenced to a good behaviour bond for eight months by the Magistrate in the NSW Local Court. As the offence of 'assault occasioning actual bodily harm' carries a maximum penalty of five years imprisonment under subsection 59(1) of the Crimes Act 1900 (NSW), the Applicant's sentence shows his offending was at the lower end of severity.

70. There were mitigating circumstances for the Applicant's offence including that the offending behaviour was not planned, over quickly and affected by stressful factors in his personal life at the time.

71. The Applicant did not breach the terms of his good behaviour bond or the AVO. The bond expired on [redacted] May 2018 and the AVO concluded on [redacted] March 2018.

72. The Applicant has expressed remorse and sorrow, and he and Ms 'A' have now established a positive friendship to co-parent their child.

73. The Applicant has no other history of criminal conduct in Iran and Australia.

74. There is no evidence of cumulative criminal behaviour by the Applicant. In particular, I reject submissions made by the Minister about 'tensions' between the Applicant and Ms 'A' on [redacted] February 2017 leading to 'charges being imposed (albeit dismissed)'.[41] As stated in paragraph 26 above, these charges were dismissed by the Court [redacted] September 2017. At this time, the Magistrate comprehensively considered all the evidence and observed the 'Crown...conceded that [the Applicant did]...not have a [criminal] record and [was]...a person of otherwise good character'.[42]

75. The Applicant has been detained for almost five years (seven months remanded in jail and four years and five months in immigration detention) since his offence and conviction.

76. The Applicant was employed in the Australian community from September 2012 to February 2017.

77. The Applicant provided care and financial support to his wife, their child and his wife's four children from her previous relationships from late 2015 to February 2017.

78. Since June 2018, the Applicant has been employed at the coffee shop at Villawood Immigration Detention Centre.

79. I accept the credible and consistent evidence of witnesses who spoke about the Applicant's positive contribution to the well-being and care of other detainees and visitors at Villawood Immigration Detention Centre.

80. The Applicant has not been involved in any offending behaviour while detained on remand and at Villawood Immigration Detention Centre. His time in detention has involved working and interacting with women.

81. The Applicant has engaged in regular counselling since October 2018 and has stated a willingness to participate in any available rehabilitation programs. He has demonstrated insight into the factors that contributed to his offending behaviour and genuine remorse.

82. While the STARTT's report dated 2 June 2021 and STARTTS counselling reports do not comment on the Applicant's risk of recidivism, this must be placed in the context of:

• the extensive period of time (almost five years) that has passed since the Applicant's only offence;
• the Applicant's compliance with the conditions of his bond and AVO; and
• no evidence of any serious conduct by the Applicant while in detention.

83. The Applicant has maintained a friendship with his ex-wife, Ms 'A', and developed a very close and loving relationship with their son, 'D'.

84. For the following reasons, I find the evidence does not suggest there is more than a minimal or remote chance the Applicant would engage in future criminal conduct in the event he is allowed to remain in Australia.

85. First, the evidence supports that the Applicant's offence was an isolated incident. Except for his conviction in 2017, he otherwise has no criminal history in Iran or Australia.

86. Second, since the Applicant was detained in February 2017, there have been no reported incidents of negative behaviour. The evidence shows the Applicant has used this time to learn English and work in the coffee shop at Villawood Immigration Detention Centre. The declarations and evidence of witnesses refer to his personal qualities of good character and his positive engagement with other detainees (men and women) and visitors to Villawood Immigration Detention Centre. Overall, the evidence shows the Applicant's conduct while in detention has been exemplary.

87. Third, many of the stressors - the mitigating circumstances - present in the Applicant's life in 2017 that contributed his offending behaviour are or will be resolved. For example:

• the Applicant is no longer in a relationship with Ms 'A': she has now re-partnered, and she and the Applicant have established a friendship for the benefit of their son;
• through attending English lessons and participating in counselling, the Applicant now understands the English language and Australian culture;
• the Applicant's skills and experience as a chef and barista - as well as his clear willingness to work - indicate he is likely to obtain employment in the Australian community;
• granting the Applicant's visa would resolve uncertainty regarding his visa and residential/working status in Australia; and
• the Applicant has support from members in the Australian community.

88. Fourth, the evidence shows the Applicant has been willing to actively engage with counselling since October 2018. I consider the Applicant's desire to continue receiving this support if released into the Australian community is a strong protective factor that would militate against any risk of future criminal conduct. This is because the Applicant's participation in counselling demonstrates his insight into his own behaviour and well-being, and counselling would provide him emotional support while in the community. I also accept the professional opinion of the STARTTS's counsellor that the Applicant's mental health would be likely to improve if he is living in the Australian community.

89. Fifth, the Applicant has a profound need to be a father who is physically present in his son's life. It is my very strong conviction that, having been deprived of being physically present in his son's life over the past five years, the Applicant would not engage in any criminal conduct (or other serious behaviour) that would jeopardise his relationship with his son.

90. Finally, my personal observations of the Applicant's participation in the hearing were that he is genuinely considerate of other people and extremely polite. His joy, humour and delight in his son was real. His relationships with all the witnesses were underpinned by caring and respectful behaviour, and empathetic language. Overall, I find the Applicant's ability to create these positive and constructive relationships - despite the challenges he has faced throughout his life - reflect a person of good character.

91. Weighing all the evidence, I am satisfied that, in the event the Applicant is allowed to remain in Australia, there is less than a minimal or remote chance that he would engage in criminal conduct in Australia. I find that none of the circumstances in paragraphs 501(6)(a)-(h) of the Act apply to the Applicant and therefore, he passes the character test in subsection 501(6) of the Act.

ISSUE 2: SHOULD THE DISCRETION TO REFUSE THE APPLICANT'S VISA BE EXERCISED?

92. Based on my decision that the Applicant passes the character test in subsection 501(6) of the Act, the discretion in subsection 501(1) to refuse to grant the Applicant's visa is not enlivened in this matter.

93. However, I have considered the extensive submissions made by representatives for the Applicant and the Minister and, for completeness, I have set out my reasons below in relation to the primary and other considerations in Direction no. 90 relevant to exercising the discretion to refuse to grant the Applicant's visa.

Primary Consideration 1: Protection of the Australian community from criminal and other serious conduct

94. Paragraph 8.1 of Direction no. 90 outlines the Government's commitment to protecting the Australian community 'from harm as a result of criminal activity or other serious conduct by non-citizens' and requires that I give consideration to:

(a) the nature and seriousness of the Applicant's conduct to date; and

(b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

95. I have set out the evidence about the Applicant's criminal conduct to date in paragraphs 25 to 27 and 47 to 53. My findings in relation to this evidence are at paragraphs 68 to 75.

The nature and seriousness of the Applicant's conduct to date

96. Subparagraph 8.1.1(1) of Direction no. 90 lists factors (at (a)-(g)) that I must have regard to in considering the nature and seriousness of the Applicant's conduct to date.

97. Relevantly, the Applicant's offence of assault occasioning actual bodily harm in the context of domestic violence is considered to be very serious - regardless of the sentence imposed - as it constitutes a crime of 'a violent nature against women' and an act 'of family violence'.

98. However, the serious nature of this offence is to be weighed against the offence comprising the Applicant's only conviction. I find no evidence of any other criminal (or other serious) conduct by the Applicant in Iran or Australia and, consequently, there is no cumulative effect of repeated offending. There is also no evidence the Applicant has provided false or misleading information to the Department.

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

99. Subparagraph 8.1.2(2) of Direction no. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:

• the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
• the likelihood of him engaging in further criminal or serious conduct, taking into account,
  • information and evidence on the risk of him re-offending, and
  • evidence of rehabilitation giving weight to time spent in the community since his most recent offence; and
• where consideration is being given to whether to refuse to grant a visa, whether the risk of harm may be affected by the duration and purpose of his intended stay, the type of visa and whether there are 'strong or compassionate reasons' for granting a short stay visa.

100. In my consideration of whether the Applicant passes the character test in subsection 501(6) of the Act set out at paragraphs 18 to 91, I have considered relevant factors and determined the risk of the Applicant engaging in future criminal conduct in Australia.

101. For the reasons outlined in my findings of fact about the Applicant's criminal history and general conduct (paragraphs 67 to 83) and my conclusion about the evidence (paragraphs 84 to 91), I am satisfied there is less than a minimal or remote chance the Applicant would engage in future criminal conduct in Australia.

102. While I find the nature and seriousness of the Applicant's offence weighs for exercising the discretion to refuse to grant the Applicant's visa, in view of my decision that the Applicant's risk of future criminal conduct is less than minimal or remote, I place less weight on this consideration.

103. Overall, I am satisfied the primary consideration of protection of the Australian community has a neutral weighting in exercising the discretion to refuse to grant the Applicant's visa.

Primary Consideration 2: Family violence committed by the Applicant

104. Subparagraph 4(1) of Direction no. 90 defines family violence as 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful'. Examples of behaviour that may constitute family violence include 'an assault'.

105. Direction no. 90, at subparagraph 8.2(1), states 'the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of...remaining in Australia'. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by the Applicant. These factors relevantly include:

• the frequency of the Applicant's behaviour and whether there is any trend of increasing seriousness;
• the cumulative effect of repeated acts of family violence; and
• rehabilitation achieved at the time of my decision since the Applicant's last known act of family violence, including:
  • the extent to which he accepts responsibility for his conduct;
  • the extent to which he understands the impact of his behaviour on his ex-wife; and
  • efforts to address factors which contributed to his conduct.

106. I have set out the evidence about the Applicant's criminal conduct to date in paragraphs 25 to 27 and 47 to 53. My findings in relation to this evidence are at paragraphs 68 to 75.

107. I am satisfied the Applicant's conviction for the offence of 'assault occasioning actual bodily harm (DV)' is consistent with the definition of family violence contained in Direction no. 90. I find this offence is very serious.

108. In considering the factors in subparagraph 8.2(3) of Direction no. 90, I find the Applicant's offending behaviour on [redacted] February 2017 comprises his only criminal conviction. In particular, I am satisfied the Applicant's charges in relation to events that occurred on [redacted] February 2017 were comprehensively considered and dismissed by the Magistrate in the NSW Local Court on [redacted] September 2017.

109. I find no evidence of any other criminal conduct or family violence by the Applicant either in Iran or Australia, and no cumulative effect of repeated acts of family violence.

110. I am also satisfied the Applicant has accepted responsibility for his conduct and understood the effect of his behaviour on his ex-wife, Ms 'A'. The Applicant has made - and is continuing to make - efforts to address mitigating factors which contributed to his stress and subsequent offending behaviour. This has included the Applicant:

• expressing remorse for his offending and insights into the reasons for his conduct;
• learning English and developing an understanding of Australian culture;
• participating in regular counselling for the past three and a half years; and
• maintaining a friendship with Ms 'A', and establishing a close and loving relationship with his son.

111. I am satisfied that the primary consideration of family violence committed by the Applicant weighs for exercising the discretion to refuse to grant the Applicant's visa. However, I place less weight on this primary consideration because the Applicant's act of family violence was a single offence, and he has actively engaged in rehabilitation since his offending behaviour.

Primary Consideration 3: Best interests of minor children in Australia affected by the decision

112. Subparagraph 8.3(4) of Direction no. 90 lists the factors I must consider in considering whether refusing to grant the Applicant's visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:

• the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited 'meaningful contact');
• the extent to which the Applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;
• the impact of the Applicant's prior and future conduct, and whether that will have a negative impact on the child;
• the likely effect any separation would have on the child; and
• whether there are other persons who already fulfil a parental role for the child.

113. The Applicant has a biological son, 'D', who is five years old. I have set out evidence about the Applicant's relationship with his son at paragraphs 63 and 64. I have also made findings about this relationship at paragraphs 83, 89 and 90.

114. The evidence shows the Applicant has developed a very close and loving relationship with his son even though he has had limited physical contact with 'D' while held in detention. As I have stated in paragraph 89, I find the evidence shows the Applicant has a profound need to be a father who is physically present in his son's future life. In making this finding, I also have regard to the evidence of the Applicant's ex-wife and 'D''s biological mother, Ms 'A', who has stated her wish for the Applicant to be released from detention so they can co-parent their son in a 'positive, co-operative and amicable manner'.

115. I am satisfied the evidence shows the Applicant would play a very positive parental role in his son's future and note that it is almost 13 years until 'D' is 18 years old.

116. For completeness, I have considered Ms 'A''s oral evidence at the Tribunal hearing about the Applicant's positive parental role with her four older children from previous relationships in the period from late 2015 to February 2017. Ms 'A' particularly mentioned her daughter (now eight-years-old) and her sons (now 17-years-old twins). While I accept Ms 'A''s oral evidence, in relation to the requirements of this primary consideration, I place less weight on the interests of these minor children because the Applicant and Ms 'A' are now separated, and Ms 'A' has re-partnered.

117. Considering all the evidence, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs very strongly against exercising the discretion to refuse to grant the Applicant's visa. I place significant weight on this consideration in view of the Applicant's very positive parental role with his five-year-old son.

Primary Consideration 4: Expectations of the Australian community

118. Subparagraph 8.4(1) of Direction no. 90 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

119. In subparagraph 8.4(2) of Direction no. 90, the Minister states that visa refusal may be appropriate because character concerns or offences are such that the Australian community would expect the person should not be granted a visa; and the Australian community expects the Australian government can and should refuse entry to non-citizens if they raise serious character concerns through conduct including acts of family violence. Further, expectations of the Australian community 'apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community': subparagraph 8.4(3) of Direction no. 90.

120. Subparagraph 8.4(4) of Direction no. 90 states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

121. Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction no. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should refuse the visa of a non-citizen if they commit serious crimes.

122. I have set out the evidence about the Applicant's criminal conduct and general conduct in paragraphs 18 to 27 and 47 to 66. My findings in relation to this evidence are at paragraphs 68 to 83.

123. In considering the seriousness of the Applicant's criminal conviction, I am satisfied the Australian community would expect this should be weighed against the Applicant's remorse and rehabilitation, and his positive general conduct in relation to employment and care for his family. The Australian community would also expect consideration of protective factors (including the Applicant's relationship with his son and his ongoing engagement with counselling) that mitigate his risk of future serious or criminal conduct. Finally, the Australian community would expect consideration of the Applicant's detention for almost five years - despite his sentence of a good behaviour bond for eight months in the NSW Local Court.

124. Based on the evidence and having regard to the principles and requirements in Direction no. 90, I am satisfied the Australian community would hold a balanced and measured view of all the Applicant's circumstances and would expect the Government to allow him to remain in Australia.

125. I am satisfied the primary consideration of expectations of the Australian community weighs against exercising the discretion to refuse to grant the Applicant's visa. I place less weight on this consideration in view of the seriousness of his offence.

126. Section 9 of Direction no. 90 lists the other considerations that I must also take into account in making a decision under subsection 501(1) of the Act. The other considerations that are relevant in this matter are:

• international non-refoulement obligations;
• extent of impediments if the Applicant is removed from Australia;
• impact on victims; and
• links to the Australian community, namely the strength, nature and duration of ties to Australia.

127. For completeness, there is no evidence before the Tribunal that shows the impact on Australian business interests are relevant to these proceedings.

Other Consideration 1: International non-refoulement obligations

128. Subparagraph 9.1(1) of Direction no. 90 articulates Australia's non-refoulement obligations in accordance with international human rights treaties[43] and, in particular, the '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'.

129. Direction no. 90, at subparagraphs 9.1(2) and (3), further states:

(2) In making a decision under section 501..., decision-makers should carefully weigh any non-refoulement obligations against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provide that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal...of a non-citizen's visa... This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions...

130. On 18 June 2020, a Member in the Migration and Refugee Division of the Tribunal decided in relation to the Applicant that:

...the Tribunal is satisfied, having considered the applicant's claims individually and cumulatively, there is a real chance, on the basis of his cumulative profile, that he will face serious harm on return to Iran for one or more reasons mentioned in the Refugees Convention, being his ethnicity and imputed political opinion. It is satisfied those reasons are essential and significant reasons for the harm feared, the harm amounts to serious harm and involves systematic and discriminatory conduct as required by s 91R(1). The Tribunal finds the agent of persecution in respect of the applicant is the Iranian state and its authorities, and is satisfied the applicant is therefore unable to avail the protection of the state and there is no part of the country that he will not face the feared persecution.

...the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention...[44] [emphasis added]

131. The Minister's representative made the following submissions to the Tribunal about the Australian Government's non-refoulement obligations to the Applicant:

The Minister accepts that a 'protection finding' has been made in respect of the applicant in circumstances where s 36(2)(a) is satisfied and where an adverse finding has not been made under s 36(1C): s 197C(5)(a) of the Act.

None of the paragraphs of s 197C(3) are satisfied or likely to be satisfied in the foreseeable future.

A decision has not been made to set aside the decision of this Tribunal's decision, nor is the Minister considering making such a decision.

A decision has not been made that the applicant is no longer a person in respect of whom a 'protection finding' applies, nor is the Minister considering making such a decision.

The applicant has not requested removal to Iran, nor has he expressed any intention to request removal should the outcome of the review be unsuccessful...

The Minister accepts that, at this point in time, the applicant is unable to be returned to Iran and, if his visa is refused under s 501(1), he will remain in Australia, detained under s 189 of the Act until one of the following events occurs:

- the Minister exercises his personal discretion under s 195A of the Act to grant the applicant a visa;

- the Minister exercises his personal discretion under s 197AB of the Act to make a residence determination in respect of the applicant;

- the Minister makes a decision under s 197D that the applicant no longer engages protection obligations;

- the applicant is removed to a third country; and/or

- the applicant requests to be returned to Iran.

The consideration of matters such as the exercise of discretion under ss 195A or 197AB, or removal to a third country, is likely to occur after conclusion of the visa application process the subject of this review. The fact that there is no evidence before the Tribunal of these matters presently being considered is readily explicable and does not gainsay the statement in Direction 90 that consideration may be given to these options.

The Minister accepts that there is no 'chronologically fixed endpoint' to this detention (such that it might be described as 'indefinite'). As a result, the applicant may be detained for a prolonged period. It is open to the Tribunal to give this matter, and any impact that such detention may have on the applicant's mental health or to his son due to their ongoing separation, weight against refusing to grant the visa.[45] [citations omitted] [emphasis added]

132. I agree with the Minister's submissions that, at this point in time, the Applicant will remain in detention indefinitely if his visa is refused under subsection 501(1) of the Act.

133. I have had regard to the Minister's personal discretionary powers as set out in the:

• Guidelines on Minister's detention intervention power - section 195A of the Migration Act 1958, which lists the types of cases that the Minister would 'generally not expect' to have referred to him for his consideration of his detention intervention power including 'people whose visa has been refused... under section 501 of the Act'.[46]
• Minister for Immigration and Border Protection's residence determination power under section 197AB and section 197AD of the Migration Act 1958, which states the Minister expects that he would not be referred cases 'where it is believed that a person presents character issues that indicate that they may fail the character test under section 501 of the Act' unless 'there are exceptional circumstances' or he has 'requested it'.[47]

134. While I accept the Minister has personal discretionary powers to intervene in an individual's case, I find these powers would be very unlikely to apply to the particular circumstances of the Applicant as the Delegate refused to grant the Applicant's visa under subsection 501(1) of the Act on the basis that he failed the character test.

135. I have also had regard to the Applicant's oral evidence to the Tribunal that he will 'never' return to Iran. This means the Applicant's only remaining alternative to indefinite detention is his removal to a third country - a situation that would further separate the Applicant from his five-year-old son.

136. Based on the evidence, I am satisfied the Applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention (noting the Minister accepts the 'protection finding' that the Applicant satisfies the criterion in paragraph 36(2)(a) of the Act). I find the particular circumstances of the Applicant are that he is likely to remain in detention indefinitely if his visa is refused under subsection 501(1) of the Act.

Australia's obligations under international law

137. The obligations of the Australian Government under international law have been articulated in the following authorities.

138. The High Court of Australia (the High Court) in Minister of State for Immigration and Ethnic Affairs v Teoh, in which Mason CJ and Deane J stated:

...ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights ... Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.[48] [emphasis added]

For, by ratifying the Convention Australia has given a solemn undertaking to the world at large ...[49]

139. Recently, the Full Federal Court in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 identified Australia's obligations in accordance with international law. Allsop CJ relevantly stated:

International law is comprised of, inter alia, treaties: international conventions, whether general or particular, establishing rules expressly recognised by the contesting states, and customary law: international custom, as evidence of a general practice accepted as law: Art 38(1)(a) and (b) of the Statute of the International Court of Justice. ...

Indeed, Australia has always (by its conduct, and by express statements) accepted that international law is law...

Article 26 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), and the principle of pacta sunt servanda, impose upon the Australian Government an obligation to observe and perform, in good faith, those treaties to which it is a party. Failure to do so exposes the nation to responsibility for internationally wrongful acts under the Draft Articles on Responsibility of States for Internationally Wrongful Acts, commended by the General Assembly on 28 January 2002, A/RES/56/83 and on 8 January 2008, A/RES/62/61, in which case Australia may face legal consequences (Art 28), including, but not limited to: cessation and non-repetition (Art 30), reparation (Art 31) in the form of restitution (Art 35), compensation (Art 36) and satisfaction (Art 37), in addition to countermeasures (Art 49**). Whether or not these legal consequences in fact arise, a breach of a treaty is a breach of international law, which is a breach of law nonetheless**.[50] [emphasis added]

140. In considering all the evidence, for the following reasons I am satisfied that Australia could be in breach of its obligations under international law if the Applicant's visa is refused and he continues to be held in detention on an indefinite basis.

141. Direction no. 90 refers to international human rights treaties ratified by Australia including the Convention Relating to the Status of Refugees (1951) (and associated 1967 Protocol (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).

142. In addition to Australia's non-refoulement obligations under international law, article 9 of the ICCPR sets out a person's 'right to liberty and security of person'. In the decision of the Full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kenny and Mortimer JJ stated:

The continued deprivation of a person's liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law...for our own part we see no difficulty in attaching the adjective "indefinite" to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.

...

No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy concerning non-refoulement that reflects Australia's international obligations, indeed it would be remarkable if that were to be suggested. As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as "indefinite". A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal's decision which restores a person's freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person's detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA)(3)...[51] [citations omitted] [emphasis added]

143. As I have set out in paragraph 136 above, it is my view that the Applicant's only alternative to indefinite detention is his removal to a third country, which would further separate the Applicant from his five-year-old son. I find that this situation would then enliven Australia's international law obligations under article 7 of the Convention on the Rights of the Child, which provides that a child shall have the right as far as possible 'to know and be cared for by his or her parents'.

The effect of indefinite detention on the Applicant's mental health

144. Finally, I have considered multiple reports written by the Applicant's STARTTS counsellor dating from 27 February 2020, stating that it would be 'beneficial' for the Applicant to 'reside outside of the detention centre' so as to 'prevent decline in his psychological health'.[52]

145. A report from the Applicant's counsellor before the Tribunal dated 4 October 2021 includes the following summary:

[The Applicant] reported feeling empty and mentally fatigued, devoid of motivation, and beyond caring. Discussing the current state of his mental health, he revealed that the distress he is currently experiencing seriously interferes with his ability to meet the demands of everyday life...

[He] underlined that the worry and fear associated with his uncertain future are constant and overwhelming to the point of crippling. He added that excessive and prolonged stress is so great that he feels increasingly hopeless, cynical, resentful and emotionally drained...

The aim of therapy was to reduce the distress that [the Applicant] is experiencing... As he remains cooperative, responding well to the therapy, ongoing counselling support is recommended...

[It] is crucial to understand that [the Applicant's] coping mechanisms are virtually non-existing. Further delay in processing his claim for asylum, with the accompanying uncertainty related to its outcome, is likely to result in a full-scale exhaustion, thus placing [the Applicant] at high risk of serious mental and physical exhaustion.[53]

146. The most recent report by the Applicant's counsellor is dated 28 November 2021, after he received the decision made by the Delegate, and stated:

Considering [the Applicant's] case, it is important to acknowledge that the migration trajectory experienced by him, particularly adversity in detention, has been accompanied by persisting and wide-ranging mental health problems associated with his traumatic past...

[The Applicant] advised that the experience of detention acts as a constant stressor, which adds to the cumulative effect of exposure to refugee trauma he experienced before coming to Australia.[54]

147. I find that, if the Applicant's visa is refused under subsection 501(1) of the Act and he continues to be held indefinitely in detention, these circumstances would have a significant adverse impact on the Applicant's mental health.

148. Weighing all the evidence, I am satisfied the consideration of international non-refoulement obligations weighs very strongly against exercising the discretion to refuse to grant the Applicant's visa. I place significant weight on this consideration in view of:

• the possibility the Applicant would remain in detention indefinitely if his visa is refused under subsection 501(1) of the Act;
• the implications for the Australian Government under international law if the Applicant is held indefinitely in detention; and
• the adverse effect on the well-being of the Applicant and his son if the Applicant either remains in indefinite detention or is removed to a third country.

Other Consideration 2: Extent of impediments if the Applicant is removed from Australia

149. The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in Iran. Pursuant to subparagraph 9.2(1) of Direction no. 90, I must consider the Applicant's 'age and health', whether there are any 'substantial language or cultural barriers', and any 'social, medical and/or economic support' available to him in Iran.

150. As I have set out in paragraphs 128 to 148, the Applicant will not be removed from Australia to Iran because Australia owes protection obligations to the Applicant under the Refugees Convention. Further, the Applicant stated to the Tribunal that he will 'never' return to Iran. In these circumstances - where the Applicant will not be removed to Iran - it is not material to consider the extent of impediments regarding his capacity to reside in Iran.

151. I am satisfied the consideration of the extent of impediment if the Applicant is removed from Australia should be given a neutral weighting in exercising the discretion to refuse to grant the Applicant's visa.

152. Subparagraph 9.3(1) of Direction no. 90 requires that I consider the impact of the section 501 decision on members of the Australian community, including 'victims' of the Applicant's criminal behaviour.

153. In the circumstances of this matter, the victim of the Applicant's offending was his (then) wife, Ms 'A'. I have set out the evidence regarding the Applicant's criminal conduct in paragraphs 25 to 27 and 47 to 53, and his general conduct in paragraphs 54 to 66. I particularly consider the evidence of Ms 'A' (paragraphs 52, 61 and 62), which show the Applicant's offending behaviour was 'out of character' and an 'isolated' incident, and he was otherwise 'caring and responsible'. I also note that Ms 'A' stated that she felt 'safe' around the Applicant.

154. I am mindful of Kerr J's remarks in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, in which he stated:

I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.

It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender's visa.

Usually, but not always.[55] [emphasis added]

155. I am satisfied the consideration of the impact on victims in these particular circumstances weighs against exercising the discretion to refuse to grant the Applicant's visa.

Other Consideration 4: Links to the Australian community - the strength, nature and duration of the Applicant's ties to Australia

156. In considering the strength, nature and duration of the Applicant's ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction no. 90 stipulate that I must consider any impact of the decision on the Applicant's 'immediate family members' in Australia, and I must have regard to:

• how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
  • less weight should be given where he began offending soon after arriving in Australia; and
  • more weight should be given to time he has spent contributing positively to the Australian community;
• the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

157. The Applicant has a son who is an Australian citizen. I have set out evidence about the Applicant's relationship with his son at paragraphs 63 and 64. I have also made findings about this relationship at paragraphs 83, 89 and 90. I have considered the best interests of the Applicant's son at paragraphs 112 to 115 and 117.

158. In view of the evidence, I am satisfied that the consideration of strength, nature and duration of the Applicant's ties to Australia weighs very strongly against exercising the discretion to refuse the Applicant's visa.

159. For the reasons set out above, I am satisfied that primary consideration 1 has a neutral weighting in relation to exercising the discretion to refuse to grant the Applicant's visa. I find primary consideration 2 weighs for exercising the discretion to refuse to grant the Applicant's visa, but I place less weight on this primary consideration for my reasons in paragraph 111. I find primary consideration 3 weighs very strongly against exercising the discretion to refuse to grant the Applicant's visa and place significant weight on this primary consideration for my reasons in paragraph 117. Finally, I am satisfied primary consideration 4 weighs against exercising the discretion to refuse to grant the Applicant's visa but, for the reason set out at paragraph 125, I place less weight on this consideration.

160. In relation to the other considerations, I am satisfied other considerations 1 and 4 weigh very strongly against exercising the discretion to refuse to grant the Applicant's visa. I place significant weight on other consideration 1 for my reasons at paragraph 148. I find other consideration 2 has a neutral weighting in exercising the discretion to refuse to grant the Applicant's visa. I find other consideration 3 weighs against exercising the discretion to refuse to grant the Applicant's visa.

161. Weighing all the relevant primary considerations and other considerations, I am satisfied the discretion to refuse to grant the Applicant's visa should not be exercised.

162. Pursuant to subparagraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the Respondent on 12 November 2021 and remits the matter for reconsideration with the direction that the Applicant passes the character test for the purposes of subsection 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 162 (one hundred and sixty two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[SGD].....................................

Mr Zaki Omar and Mr Eric Zhang, Human Rights for All Pty Ltd

Ms Olivia Hicks, Australian Government Solicitor

[1] Referred to in the decision as 'Delegate of a Minister administering the Migration Act 1958'.

[2] The Applicant's original application for a Protection (Class XA) visa that was made on 27 August 2012 has been converted to an application for a Temporary Protection (Class XD) visa by operation of regulation 2.08F of the Migration Regulations 1994 in accordance with section 45AA of the Act: see G-G3, Attachment D, page 66.

[4] Exhibit G-G3, Attachment J, page 119.

[5] Exhibit G-G3, Attachment J, page 119.

[6] The Basij is a volunteer paramilitary organisation.

[14] On 1 July 2015, the Refugee Review Tribunal (together with the Migration Review Tribunal and Social Security Appeals Tribunal) was amalgamated with the Administrative Appeals Tribunal.

[16] [2017] FCAFC 114.

[18] The 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

[20] Exhibit G-G3, Attachment D, page 68.

[21] Exhibit G-G3, Attachment N, page 169.

[23] [2009] AATA 512 at [25]- [27].

[24] [2018] AATA 1855 at [13]- [14]. Citations removed.

[25] (No 2) [2021] FCA 1536 at [179].

[26] (No 2) [2021] FCA 1536 at [182].

[27] See (No 2) [2021] FCA 1536 at [181]- [184].

[29] Exhibit G-G3, Attachment C, pages 59-60.

[30] Exhibit G-G3, Attachment C, pages 64-65.

[41] Respondent's Statement of Facts, Issues and Contentions, 4 January 2022, paragraph 30.1.

[42] Exhibit G-G3, Attachment C, page 64.

[43] 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; and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

[44] Exhibit G-G3, Attachment J, pages 139-140.

[45] Respondent's Statement of Facts, Issues and Contentions dated 4 January 2022, paragraphs 61-65.

[46] Guidelines on Minister's detention intervention power - section 195A of the Migration Act 1958, Department of Immigration and Border Protection, Australian Government. Instruction reissued on 18 August 2017: see Part 4.

[47] Minister for Immigration and Border Protection's residence determination power under section 197A and section 197AD of the Migration Act 1958, Department of Immigration and Border Protection, Australian Government. Instruction reissued on 21 October 2017: see Part 10.

[48] [1995] HCA 20; 183 CLR 273 at [291].

[49] [1995] HCA 20; 183 CLR 273 at [301].

[50] [2021] FCAFC 195 at [6]- [7], [13]

[51] [2021] FCAFC 55 at [123], [136].

[55] [2021] FCA 1235 at [57]- [59].