2218050 (Migration) - [2025] ARTA 538

2218050 (MIGRATION) [2025] ARTA 538 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2218050

Tribunal:Denis Dragovic
Place:Melbourne
Date: 25 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Humanitarian Subclass 201 visa for reconsideration in accordance with the order that the applicants meet the cl 201.222 of Schedule 2 to the Regulations

Senior Member D. Dragovic

Statement made on 25 February 2025 at 1:29 PM
CATCHWORDS
MIGRATION – Refugee and Humanitarian (Class XB) visa – Subclass 201 (In-country Special Humanitarian) – arrived on temporary humanitarian visa and applied for current visa in Australia – “home country” – citizenship of another country gained through investment but not usually resident there – comparative weighting of four criteria – extensive business contacts with former government and foreign government and non-government operations – first applicant and employees attacked – minority ethnicity and religion – Hazara Shia – country information – level of risk unclear – members of family unit wife and daughters – family, community and school activities in Australia, and business links to home country – ‘suitable’ other country – negative perceptions of migrants and refugees in other country – joint hearing with adult, married child’s separate application – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 5L, 65, 35A, 338(2)(b), 338A
Migration Regulations 1994 (Cth), r 1.03, Schedule 1, item 1402(3B)(b), Schedule 2, cl 201.222
CASE
Plaintiff M64/2015 v MIBP [2015] HCA 50

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2022 to refuse to grant the visa applicant a Refugee and Humanitarian (Class XB) Subclass 201 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 12 July 2022. The delegate refused to grant the visa on the basis that the applicant’s held [Country] citizenship and as such the delegate found that the applicants did not meet the criteria for the visa.
The applicants appeared before the Tribunal on 5 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the eldest daughter of the first and second named applicants (“the witness”) who has married and as such her application (2450695) was split from her family. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
Although the applicants were split at the Tribunal stage, the hearings were held jointly.
The applicants were represented in relation to the review.
Is the application a reviewable decision?
Subclass 201 visas are generally a category of visas that are non-reviewable as the visas are generally for people making applications while offshore, whereas the Migration Act 1958 requires that for a decision to be a reviewable decision the application for the visa is made while in the migration zone (s338(2)(b)).
But there is a nuanced set of circumstances that lead to subclass 201 visas being granted while onshore and as such may be reviewable. This case falls into such a category.
The applicants arrived legally to Australia on a subclass 449 visa. This subclass of visa was used to relocate Afghan nationals to Australia.
Legislated Instrument 21/080 states that ‘For paragraph 1402(3B)(b) of Schedule 1 to the Regulations, an applicant for a Refugee and Humanitarian (Class XB) visa is in a class of persons if the applicant is of a kind mentioned in subsection (2) or (3).’
(2) The applicant has been granted a subclass 449 visa due to any of the following:
(a) the deteriorating security situation in Afghanistan (the main 449 visa holder);
(b) being a member of the immediate family of a main 449 visa holder at the time that the main 449 visa holder was granted that visa;
(c) being a member of the family unit of a main 449 visa holder;
(d) being a member of the immediate family of a subclass 449 visa holder referred to in paragraph (b).
(3) The applicant:
(a) is a child born in Australia who is taken to be granted a subclass 449 visa by operation of section 78 of the Act;and
(b) is the child of an applicant mentioned in subsection (2).
Schedule 1 1402(3B)(b) relates to the requirements for a valid application. The applicant was found to be a class of persons that met the requirements for the grant of a subclass 449 visa. The visa was granted on 13 November 2021. The applicant entered Australia [in] November 2021.
The applicants were then invited to apply for a subclass 201 visa after they were already onshore and did so on 12 July 2022. As such the application was made onshore (despite it being done using an ‘Offshore Humanitarian visa application form’). It was confirmed as a valid application by way of correspondence from the Department dated 12 July 2022.
The application was refused by a delegate of the Minister on 29 November 2022 because the delegate found that the applicant did not meet clause 201.222 of Schedule 2 of the Migration Regulations 1994, specifically because the applicant is also a citizen of [Country].
As noted, the applicant appealed the decision to the then Administrative Appeals Tribunal on 8 December 2022. Section 338 and s338A of the Migration Act provide for what constitutes a reviewable migration and protection decision respectively.
This decision is a ‘migration’ decision as opposed to a ‘protection’ decision, for which s338A would be the relevant section, as s35A defines which visas are protection visas and class XB subclass 201 visas are not defined as such.
Having reviewed s338, I find that the application meets all of the criteria for a reviewable migration decision including, of note, for this type of visa that it was made while the applicant was in the migration zone (s338(2)(b)).
Issue to be considered
The Minister’s delegate refused the applicant’s visa on the basis of the applicant not meeting the primary criteria of any of the relevant subclass criteria within the overarching XB class, namely 200.222, 201.222, 202.222, 203.222, 204.224 of Schedule 2 to the Migration Regulations 1994, nor any of the secondary criteria for members of the same family unit listed in clauses 200.311, 201.311, 202.311, 203.311 and 204.311.
The primary clauses listed above have common considerations of whether there are ‘compelling reasons for giving special consideration to granting to the applicant a permanent visa having regard to’:
(a) the degree of persecution to which the applicant is subject in the applicant's home country; and
(b) the extent of the applicant's connection with Australia; and
(c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from persecution; and
(d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
In very brief reasons, the Minister’s delegate found that having [Country] citizenship (in the context of (c)) weighed against the applicant and that the weight of the four criteria combined led to there not being the necessary compelling reasons.
I note that the term ‘compelling’ is not defined but has been considered in another context and is found to be circumstances that must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50.
I also note that there is no guidance given on the weighting to be given across the four considerations such as whether one or another should be a primary consideration and others secondary. As such I will provide equal foundational weighting to each.
Evidence and considerations
Background
The applicants provided at the hearing detailed evidence with regards to their lived experience but noting that the situation in Afghanistan drastically changed on 15 August 2021 when the Taliban took over control, the relevance of their experiences in informing the Tribunal on their future circumstances is minimal. For this reason, I will only provide a brief summary of this period of their life.
The applicants were born in Parwan, Afghanistan, but later moved to Kabul. In 2008 the first named applicant opened a contracting business.
The first named applicant’s (“the applicant”) business grew with clients including [organisations] as well as some contracts from the Afghan government.
It was claimed and I accept that [the applicant] did not merely work on projects within the Australian [Operation]. He was the director and as such was well known within the community as having worked in direct partnership with the Australian Government.
He described his situation at the time as financially ‘very good’. But, as the security situation changed in Kabul, he had to relocate from one district to another. He described fears for his children younger, such that he had to have them driven to school and picked up after school and they weren’t allowed out without their mother or father accompanying them.
He said that his fears arose from his company’s experiences including people who had worked for him being attacked and he was attacked. The applicant was assaulted once and narrowly escaped an attack while working in Ghazni province where he learned that the local Taliban were interested in him.
The applicant fears kidnapping (by enemies and criminals) as well as harm arising from the Taliban for reasons of being associated with Westerners.
The applicants are of the Hazara minority.
Following a security incident, the applicant sought opportunities to leave Afghanistan, so he went to [Country] to assess the situation. He ended up going several times and in 2020 purchased the apartment as a part of a government scheme allowing for the granting of citizenship for those who invest a certain amount in [Country].
The applicant travelled back to [Country] to obtain the documentation for citizenship and then returned to Afghanistan three months before the fall of the Kabul government.
In the immediate aftermath of the fall of Kabul the applicant took his family to [Country] and stayed there through to November 2021.
On 13 November 2021 the family were granted the sc449 visas. They arrived in Australia [in] November 2021.
the degree of persecution to which the applicant is subject in the applicant's home country
‘Home country’ is defined in r.1.03 as:
(a) the country of which the person is a citizen; or
(b) if the person is not usually resident in that country, the country of which the person is usually a resident.
The applicants are citizens of [Country] and Afghanistan. As such under part (a) the home country could be identified as either country.
Whereas part (b) refers in the alternative to a residency consideration and despite the ‘or’ connecting the two parts, the nature of (b) as it is constructed suggests that the applicants not usually being resident in [Country], the home country is the country in which the person is usually a resident. In the applicants’ case this is Afghanistan as the applicants have lived in Afghanistan for their entire life prior to arriving in Australia.
As such, which ever pathway is taken, whether considering the alternative citizenship of [Country] but usual residence of Afghanistan or the citizenship of Afghanistan and usual residency in Afghanistan, the home country in this context is Afghanistan.
The applicant’s representative provided submissions which included country information relevant to the applicants’ circumstances.
Most broadly, relevant to all applicants is the treatment of Hazara in Afghanistan. DFAT assesses:
3.5 DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.[1]
[1] DFAT Thematic Report Afghanistan Political and Security Developments August 2021 to January 2022 (January 2022)
The animosity towards Hazara is not arbitrary but rather systematic, arising from the values and beliefs of the Taliban.[2] In addition, while the Taliban have taken a pragmatic approach, as noted below, other groups such Islamic State in Khorasan Province are explicitly targeting Shia and Hazara throughout Afghanistan.[3]
[2] Ibid [3.8]
[3] Ibid [3.4]
Noting that the DFAT report would have relied on information from late 2021, I turn to more recent reporting by other groups which all report ongoing physical violence and harassment, targeted assassination and official discrimination towards Hazara.[4] Conversely, Hazara hold senior positions in the Taliban government including three deputy ministers, a governor, and a police chief.[5] The assessment of the situation of Hazara is difficult to distil due to many other factors impacting Taliban actions including the targeting of former security forces personnel or property dispute victims who may also have been Hazara and harm arising for reasons of general bureaucratic blockages as opposed to for reasons of ethnicity.[6]
[4] Genocide Watch and Human Rights Watch as representative sources.
[5] Common Claims, Afghanistan, Country of Origin Information Services Section (COISS), Effective from 13 December 2024
[6] ibid
The applicant claimed that he communicated with his family living in Afghanistan and their feedback was that they can’t speak freely about the persecution they face, and his former workers tell him that they have ‘lots of problems’. I noted that he had over 150 workers and yet he was giving evidence that only one was targeted. The applicant responded that of those that were skilled and as such senior, they had already fled.
The overarching view in the DFAT Common Claims document which compiles various sources is that the Taliban are threatening violence rather than actually perpetrating violence against Hazara, but they are also not actively protecting Hazara (from other groups) nor protecting their rights.
A part of the harm Hazara face is due to an association between ethnicity and religion. There is an assumption that Hazara are Shia and Shia are perceived by the Taliban as well as other militant Sunni groups as apostates. The US government International Religious Freedom report notes: ‘During the year, multiple sources said the Taliban had marginalized the minority Shia Muslim population in an effort to force them to leave the country.’[7] The applicant said that whereas before he didn’t have a problem as a Shia now there are instances where Shia are forced to convert to Sunni Islam.
[7] >
Beyond being Hazara and Shia, the applicants have their own additional reasons to fear harm. The first named applicant owned a company that had provided services to Western [operations], the second named applicant is an adult female and as such treated discriminatorily by society and the authorities, and the children to varying degrees will endure the associated risks arising from either or both parents.
Regarding the risks arising from contracting to Western countries, many Western governments established procedures for the evacuation of individuals and families who supported Western efforts in Afghanistan. The Australian government’s program was the Locally Engaged Employee program which recognised the risks facing locally engaged Afghans who supported Australia.
Recent reporting by DFAT indicates that the Taliban has targeted Afghans with links to the former government and its security forces as well as to the international community, which is relevant to the first applicant’s circumstances.[8] But again in line with the lack of clarity on the situation on the ground, some reporting suggests that for low level individuals who were involved in a technical capacity they faced a low level of risk.[9] The Netherlands Ministry of Foreign Affairs summed it up as, ‘there was a high degree of arbitrariness, and in any case individual actions and the settlement of old scores and personal feuds sometimes occurred. The risk that an individual faced depended mainly on the local Taliban actors and, if they wanted revenge, for whatever reason, that person would not be safe.’[10]
[8] Common Claims
[9] ‘DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022)', Department of Foreign Affairs and Trade (DFAT), 14 January 2022, Section 3.30,
[10] ‘General Country of Origin Information Report Afghanistan (June 2023)', Netherlands Ministry of Foreign Affairs, 30 June 2023, p.68,
With regards to the treatment of women, including the second named applicant who is an adult and the two younger female applicants, who are [Ages], the reporting on the situation is less opaque. Women are severely limited in their freedom of movement, income opportunities, and education. They have fewer legal rights. In this scenario the mother faces limitations on her freedom whereas the children face threats to their ability to continue beyond primary level education.[11]
[11] >
The witness claimed that of her cousins who continue to live there the female children are not allowed to go to school or university, nor can they go out freely without a man.
I note that the factor refers to ‘persecution’. Section 5J includes a definition of persecution as being ‘persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ In considering the above fears, I am satisfied that the harm arising from being Hazara and Shia is for reasons of race and religion and therefore amounts to persecution.
I now turn my mind to consider whether ‘female’ is a particular social group in the context of Afghanistan and similarly, ‘Afghans who have previously worked for Western employers’.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
With regards to female as a particular social group, the characteristic that is shared is not the fear of harm. Female, being defined in the cultural context of Afghanistan as women having a reproductive system, is a characteristic shared by each of the group. This characteristic is innate and immutable. As such I find that ‘female’ is a particular social group and as such any harm that is persecution.
As for ‘Afghans who have previously worked for Western employers’, as with female, the characteristic is not a shared fear of harm. That they were all employed by Western bodies is the shared characteristic and while not innate it is immutable because it is a fact of the past that cannot be undone. As such I find that ‘Afghans who have previously worked for Western employers’ is a particular social group and as such any harm that is persecution.

In considering the ‘degree of persecution to which the applicants are subject in the applicant's home country’, noting that each has different claims, I nevertheless place considerable weight to each applicant’s claims when considering whether there are compelling reasons for giving special considerations to granting the applicants a permanent visa.
the extent of the applicant's connection with Australia
At the hearing the applicants were asked to discuss their connection to Australia.
The first named applicant said that he attends his mosque regularly, 2-3 nights per week and participates in other community events such as funerals. He is also a member of the [Organisation 1], a community group that seeks to preserve their ethnicity, heritage and culture. A letter was received that spoke to the applicant’s involvement:
[The applicant] has been an active member of the [Organisation 1] since the end of 2022, consistently contributing to various activities and events hosted by the center. His involvement spans donations, food preparation for occasions such as Ramadan and Muharram, and other services crucial to the success of these events. [The applicant] is a valued asset to the community, and [Organisation 1] expresses gratitude for his dedicated service. He consistently goes above and beyond, allocating additional time to assist others. His commitment to the community is commendable, and we are pleased with his exemplary character.
Another letter was received from ‘[Official]’ noting the applicant’s involvement in the [Organisation 2] as ‘a positive, caring and hardworking person.’
The applicant established a [business 2] upon arrival to Australia. He expressed happiness for not being unemployed and said that it provides enough income to support his family.
The second named applicant’s connections include family members; friends, through the course she studies; and neighbours. She explained that she studies English and [activity] both at [Organisation 3], attending classes up to three times a week.
The children are claimed to be active in their school, have friends, and are happy. The son has a group of 10-12 friends, some of whom are relatives, and they enjoy going to the gym. Both daughters also have close friends in Australia.
The fourth named applicant provided documents showing her participation in the Premier’s reading challenge, a certificate for ‘enacting the community commitment’ at [High School], certificates of ‘perfect attendance’, and a certificate of achievement presented by the Department of Education for her participation in the [Department program].
The applicant identified [nephews] in Australia all on permanent visas with whom they are close. One is married to his daughter, some worked with him in Afghanistan.
The applicant’s daughter whose application was considered separately but appeared as a witness in this matter married in March 2024. She is living with her husband. The families are close and spend considerable time together.
In addition, the applicant’s work in Afghanistan for the Australian [operation] since 2012 is a connection with Australia that has developed both personal relationships but also a commitment to the country.
The Tribunal received submissions by the applicant’s nephews who are permanent residents of Australia. They wrote that that he plays an important role in their lives in Australia including caring for their children and providing guidance to them as they grow. They described his continuing presence in Australia as vital to their well-being. Another described the uncle’s presence as, ‘vital connection to my heritage and a source of strength in a new land.’
With regards to the links the applicants have to another country, particularly Afghanistan, they have extended family there, though they haven’t returned to visit anyone since leaving in 2021. The applicant’s business remains registered but its not operational. He said that he tried to shut it down officially, but he claims that he is required to be there physically to do so. In a letter written by his current business partner the writer states that he and the applicant continue to buy and sell property and land in Afghanistan.
The author of another letter submitted to the Tribunal was confronted by the Taliban together with the applicant in 2015 as described above. He described how that incident included the confiscation of their Australian issued identity cards which put him at risk and led him to seek and be granted a humanitarian visa to Australia in 2017. This man has since become an Australia citizen and has an ongoing relationship with the applicant.
The applicants have resided in Australia for three years. They have each pursued their own paths, establishing a business, attending classes, or going to school. Each of these pathways has led to the applicants building connections with Australia. I find that the first, third, fourth and fifth applicants have strong connections and as such place considerable weight that there are compelling reasons for giving special considerations to granting the applicants a permanent visa. With regards to the second named applicant, I place moderate weight towards finding that there are compelling reasons.
whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from persecution
The applicants’ lived experiences in [Country] were presented to the Tribunal by the applicant. He said that he tried to set up a business but didn’t see a way. He said that the majority of those in a similar situation to him work in other countries such as [named countries] or have businesses there and support family members in [Country]. He said that he couldn’t do that because he didn’t have a large enough business to support his family.
He said that as citizens they had access to government services such as the health system, but he added that it is very expensive, albeit partly covered by the government. He said that he did not have access to social security.
He felt that because there are lots of migrants in [Country], society treats them all the same, whether they are legal or illegal. He described the discrimination he encountered: if you can’t speak [Country] people won’t help you, if you establish a business, they won’t buy from you. He said that there is a culture in [Country] of buying from [Country people] and not from others.
I suggested that rather than setting up a business he could work as a day labourer or in transport, jobs that may not need him to speak [Country language]. He acknowledged that if he was alone, he could earn enough, but such jobs would not pay enough to cover the costs of six people. In addition, he said that due to his age he wouldn’t be able to get a labouring job.
The witness noted that in [Country] you are always required to carry your documents with you as proof of your identity and status.
The relevant considerations under this section are whether [Country] can provide for the applicant’s settlement and protection from persecution. With regards to settlement, the applicant did not dispute that they have the same rights to settle that are afforded to other citizens of [Country].
The representative raised the wording of subclause 201.222(c) noting that it refers to a ‘suitable country’ and for this term to have any meaning it cannot be a simple assessment of whether the applicants have citizenship that provides for settlement and protection from persecution but rather whether the country is suitable in other ways.
I accept that the term suitable needs to carry some purpose in this context. In considering this I adopt the approach that there is a need to consider the suitability in the context of settlement and any persecutory elements.
The representative argued that the information provided by the applicant is indicative of [Country] not being ‘suitable’ both in terms of settlement, referencing the prejudices in business as well as in persecution.
Country information was provided including a recent study that showed the prevalence of negative perceptions towards Afghan refugees and migrants in [Country]. The following was extracted from the research report:
[Deleted].
In other parts of the report the authors found perceptions of Afghans most aligned with ‘ugly, disgusting, or even monsters.’
The representative noted that [Country] is involved in politicised mass deportations. But I find that the applicants hold citizenship, this would not be a risk they face, though it does add to evidence of a societal prejudice against them. The representative noted that the government has deported documented Afghans as well as undocumented, but without further information this would reasonably be read as documented non-citizens as opposed to citizens of Afghan heritage.
In addition, the applicant provided country information that indicates that an opposition political party has filed a lawsuit to challenge the constitutional validity of the granting of citizenship to foreigners when purchasing property. I do not place any weight on the outcome of the case. It would be speculative without further assessments or analysis by experts in the field, nevertheless I accept that it is a further example of the attitudes towards foreigners and particularly those who were able to obtain citizenship based on the reduced threshold of investment.
The representative highlighted language, negative attitudes, social exclusion, and overt, systemic discrimination against Afghans as a basis to find that [Country] was not a suitable country.
In considering this factor, I note that the legislation’s introduction of the subjective consideration of suitability leads to the factor carrying a wider spectrum of weight as opposed to a more binary assessment of whether the applicants have an alternative citizenship or not. I accept that the applicants faced hardships while in [Country] and had they remained, these hardships would have persisted. They would have had to learn the language, start from the lowest socio-economic rung, develop friendships and connections, and assimilate into [Country] society at the expense of their own sense of identity all in the face of prejudice. But I place limited weight on these hardships in that such challenges are not uncommon around the world to varying degrees and yet this doesn’t make host countries unsuitable for migrants. When placing weight on this factor, I find that there is a suitable country available, other than Australia, that can provide for the applicant's settlement and protection from persecution but place moderate weight against there being compelling reasons.
the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia
The representative raised in her submissions a nuanced understanding of how this factor should be considered referencing Plaintiff M64-2015 v Minister for Immigration and Border Protection[12] in which four of the five justices in a joint decision wrote:
The issue is not whether arrangements can be made to feed, clothe and house the Visa Applicants by relying upon the support of the plaintiff's carer and the local Hazara community. The issue is as to the capacity of the Australian community to provide for their permanent settlement in Australia. Clause 202.222(2) authorises the decision-maker to consider a wide range of matters which bear upon their successful absorption into the Australian community, including, but not limited to, their likely ability to support themselves, and the effect that the exercise of that ability is likely to have upon others in the community. Concerns such as these are comprehended in the notion of "provid[ing] for ... permanent settlement ... in Australia", that is, as members of the Australian community. These concerns are not apt to be resolved by arrangements for the provision of accommodation and support to the Visa Applicants.
[12] Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50 (17 December 2015)]
The applicant’s representative had argued that the Australian government facilitated the evacuation and then made available the subclass 449 visa to locally employed Afghans fleeing the Taliban and that this is indicative of the Australian community being able to provide for the permanent settlement of persons such as the applicant. In Plaintiff M64-2015 the issue of considering ‘available spaces’ was deemed as a possible relevant consideration.
As the wording in cl.201.222 presupposes a situation in which the applicants have not already lived in Australia whereas the applicants in this matter have, the consideration of the question of the capacity of the Australian community to provide for the permanent settlement of persons such as the applicants is largely answered in the affirmative. The applicants have found places in school, are not reliant on welfare—generating an income in the private sector, they are contributing to the social fabric through their community activities. Persons such as the applicants require minimal support and as such the capacity of the Australian community to support such persons is very high.
There being minimal reasons to believe that there isn’t the capacity within the Australian community to provide for the permanent settlement of persons such as the applicants, I place moderate weight in favour of there being compelling reasons.
Considerations
The question to be considered is whether I am satisfied that there are compelling reasons for giving special consideration to granting to the applicants a permanent visa having regard to the four factors engaged with above. Neither of the factors are identified as being primary or having primacy over another. In considering them as a whole, I note that the applicants face a high degree of persecution in their home country and as such I placed considerable weight in favour of there being compelling reasons to give special consideration to granting the visa. Similarly, when it comes to the connections with Australia, I placed considerable weight although for the second named applicant I placed moderate weight. With regards to there being a suitable country that can provide the applicants settlement and protection from persecution, I found that there was a suitable country and as such placed moderate weight against there being compelling reasons. With regards to the Australian community’s capacity to provide for the permanent settlement of persons such as the applicant, I note that they have already proven that the capacity is very high as persons such as the applicants require so little from Australia. For this reason, I placed moderate weight in favour of there being compelling reasons. When considered as a whole, I am satisfied that there are compelling reasons for giving special consideration to granting to the applicants a permanent visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Humanitarian Subclass 201 visa for reconsideration in accordance with the order that the applicants meet the cl 201.222 of Schedule 2 to the Regulations.
Date(s) of hearing: 5 February 2025
Representative for the Applicant: Ms Sarah Shnider