ABBAS and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1343
•8 August 2025
ABBAS and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1343 (8 August 2025)
Applicant: Jamshaid ABBAS
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3686
Tribunal:General Member J Pennell
Place:Melbourne
Date:8 August 2025
Decision:
The Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.
........................[sgd]...............................................
General Member J. Pennell
CATCHWORDS
MIGRATION – Visa cancellation revoked – Class TY Subclass 444 Category (Temporary) Visa – Migration Act 1958 Section 501(3A), Section 501CA(4), Section 501(6) - Character test - Direction 110 - Protection of the Australian Community - Risk to the Australian Community - Strength, nature and ties to the Australian community - risk of impediments if returned – Legal consequences of decision.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAF 185.
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133.
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559.
Murphy v Minister for Home Affairs [2018] FCA 1924.
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303.
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545.
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125.
SECONDARY MATERIALS
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Statement of Reasons
1.This is an application to review the decision dated 16 May 2025 made by a delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to revoke the mandatory cancellation of the Applicant’s Class GK Subclass 482 Temporary Skill Shortage visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The delegate found that the Applicant did not pass the character test and was not satisfied that there was another reason why the cancellation of the visa should be revoked.
2.The Applicant was born on 13 April 1987 (38 years old) and is a citizen of Pakistan.
3.The Applicant’s relevant history is as follows: [1]
[1] Respondent’s Statement of Facts, Issues and Contentions.
Date
Event
Reference
13 April 1987
The Applicant is born in Hafizabad, Punjab, Pakistan.
G2 119
10 April 2015
The Applicant first arrives in Australia (Kingsford Smith).
G6 358
8 September 2016
The Applicant departs Australia (Kingsford Smith).
G6 357
20 October 2016
The Applicant arrives in Australia (Kingsford Smith).
G6 357
11 July 2019
The Applicant departs Australia (Kingsford Smith).
G6 357
24 August 2019
The Applicant arrives in Australia (Kingsford Smith).
G6 357
7 September 2022
The Applicant is granted a Class GK Subclass 482 Temporary Skill Shortage visa.
G1 212
23 January 2023
The Applicant departs Australia (Kingsford Smith).
G6 357
24 May 2023
The Applicant arrives in Australia (Kingsford Smith).
G6 357
5 September 2024
The Applicant is convicted in the Local Court of New South Wales at Gosford for five counts of sexually touching another person without consent and sentenced to imprisonment for an aggregate term of 15 months.
G2 38 & 52
13 January 2025
The Applicant's visa is cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘cancellation decision’).
G5 349
20 January 2025
The Applicant requests a revocation of the cancellation decision.
G2 73
16 May 2025
A delegate of the Minister decides not to revoke the cancellation decision under s 501CA(4) of the Migration Act 1958 (Cth) (‘decision under review’).
G2 15
23 May 2025
The Applicant acknowledges receipt of the notice of decision not to revoke visa cancellation.
G4 348
24 May 2025
The Applicant applies to the Tribunal for a review of the decision under review.
G1 1
4.The Tribunal hearing was held on 30 and 31 July 2025 via Microsoft Teams. The Applicant attended the hearing via video link from immigration detention and was represented at the hearing by Ms Reema Zraika as instructing solicitor and Mr Nic Angelov of Counsel. The Respondent was represented at the hearing by Ms Rhonda Lee of Clayton Utz.
5.For the following reasons, the Tribunal has concluded that the Minister’s decision should not be revoked.
Relevant law
6.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.
7.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly, s 501CA(4) states:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
8.Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
9.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part, s 501(6) states:
(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……..
10.Section 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
11.If an Applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[2] In Plaintiff M1/2021,[3] the High Court referred to how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
………………………..
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).
[2] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
Direction 110
12.On 7 June 2024, Direction No.110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’) came into effect. Direction 110 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. It is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.
13.Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.
14.The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
15.Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:
a) legal consequences of the decision;
b) extent of impediments, if removed;
c) impact on Australian business interests.
16.A decision maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[4] Colvin J when considering an earlier Direction stated:[5]
‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[4] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
[5] Direction 65.
17.The issues before the Tribunal are:
(a)does the Applicant pass the character test, as defined in s 501 of the Act? If not;
(b)is there another reason why the original decision should be revoked?
Documents
18.The following statements were provided to the Tribunal in support of the Applicant’s application for review:
(a)Applicant’s submissions.[6]
[6] HB4 361.
(b)Applicant’s witness statement dated 18 July 2025.
(c)Applicant’s witness statement dated 21 February 2025.[7]
(d)Applicant’s witness statement dated 15 April 2025.[8]
(e)Statement by Mohamed Ali Maarbani dated 30 January 2025.[9]
(f)Statement by Rob Bilal Laidlaw undated.[10]
(g)Statement by Mahmoud Chandab dated 29 January 2025.[11]
(h)Statement by Mahmoud Chandab dated 27 February 2025.[12]
(i)Statutory declaration by Marwan Akkouch dated 6 February 2025.[13]
(j)Statement by Emad Maarbani dated 15 April 2025.[14]
(k)Statement by Ahmed Kilani dated 4 March 2025.[15]
(l)Statement by Deniz Dagli Senior Clinical Psychologist dated 29 June 2025.
[7] G2 117.
[8] G2 129.
[9] G2 108.
[10] G2 109.
[11] G2 110.
[12] G2 120.
[13] G2 112.
[14] G2 113.
[15] G2 128.
19.In addition, the Tribunal was provided with:
(a)Respondent’s Statement of Facts, Issues, and Contentions dated 11 July 2025.
(b)Respondent’s Supplementary ‘T’ Documents.
(c)G Documents.
(d)Hearing Book.
The character test
20.The character test is defined under s 501(6) of the Act. It provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a ‘substantial criminal record’ if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.[16]
[16] Migration Act 1958 (Cth) s 501(7).
21.In this case, on 5 September 2024 the Applicant was found guilty by the Local Court of New South Wales at Gosford of five counts of sexually touching another person without consent and sentenced to an aggregate term of 15 months imprisonment (‘the index offence’). Having been sentenced to a term of imprisonment greater than 12 months, the Applicant concedes that he does not pass the character test for the purposes of the Act.
22.Based on the Applicant’s own admission and the documentation provided, the Tribunal finds that the Applicant has a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. The Tribunal finds that the Applicant does not pass the character test and that the requirements of s 501CA(4)(b)(i) are not met. As a result, the Applicant cannot rely on s 501CA(4)(1)(a) of the Act for the cancellation of his visa to be revoked.
Whether there is another reason the visa cancellation decision should be revoked
23.The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant’s visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.
Protection of the Australian community
24.Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[17] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct.[18]
[17] Direction 110, paragraph 8.1(1).
[18] Direction 110, paragraph 8.1(2).
Nature and seriousness of the conduct
25.In considering the nature and seriousness of the Applicant’s offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The Direction indicates that violent crimes are viewed seriously by the Australian Government and the Australian community.
26.In this case, on 5 September 2024 the Applicant pleaded guilty to the index offence and was sentenced by the Local Court of New South Wales at Gosford to a term of imprisonment of 15 months.[19] The Applicant appealed the severity of his sentence to the District Court of New South Wales at Gosford. The Court dismissed the Applicant's appeal and on 30 October 2024, upheld the original sentence imposed by the Local Court.
[19] G2 38-41.
27.The circumstances of the Applicant's index offending are detailed in the sentencing remarks of the Local Court of New South Wales at Gosford dated 5 September 2024[20] and the appeal judgement in the New South Wales District Court at Gosford dated 30 October 2024.[21] The Applicant’s offending took place while he was working as an Uber driver. The victim was a 17-year-old female passenger in the vehicle. After a male passenger was taken to his destination, the victim was left alone in the vehicle with the Applicant. In the vehicle, the Applicant grabbed and kissed the victim. He then took the victim's hands and placed them on his groin and erect penis. In addition, he exposed the victim's breasts and proceeded to lick and suck her breasts.[22]
[20] G2 42.
[21] G2 54.
[22] G2 42-51.
28.During her sentencing remarks[23] Her Honour noted that at the time of the index offending the victim was 17 years of age who trusted the Applicant to safely deliver her home. Her Honour noted that the victim’s evidence was clear at the hearing and that the Applicant had sorely abused her trust. In the District Court appeal judgement, it was noted that the victim was a vulnerable person in circumstances where she was a minor and 'somebody who had been drinking, who thought that she could get in an uber to get home.' In the sentencing remarks of the Local Court Her Honour states that she had read the victim report and noted that the index offending had clearly affected the victim deeply.[24] Her Honour did consider the fact that the Applicant did return to Australia from Pakistan to deal with the index offending and the fact that he was married with a young daughter in Pakistan. Nevertheless, Her Honour found the index offending to be serious involving a significant breach of trust to a minor.[25]
[23] G2 48.
[24] G2 49.
[25] G2 49.
29.The Tribunal notes that pursuant to paragraphs 8.1.1(a)(i) and 8.1.1(a)(ii) of Direction 110 (sexual crimes and crimes of a sexual nature against women or children) the index offending is the type of conduct that the Australian Government and the Australian community consider to be very serious. Further, paragraph 8.1.1(1)(b)(ii) of Direction 110 makes it clear that crimes committed against vulnerable members of the community (in this case against a minor) are also considered to be serious. It was submitted by the Respondent[26] that sexual offences such as the index offending, rank amongst the most serious in the hierarchy of criminal offences and are repugnant to ordinary members of the Australian community and contrary to Australian values.
[26] Respondent’s Statement of facts, Issues and Contentions.
30.The Tribunal notes that paragraph 8.1.1(1)(c) of Direction 110 reflects the fact that the Tribunal does not need to consider the Applicant’s sentence to the extent that it constitutes a crime or conduct mentioned in paragraph 8.1.1(1)(a)(ii), (a)(iii) or (b)(i) of Direction 110. Nevertheless, the Tribunal observes that a custodial sentence is the most serious type of punishment in the hierarchy of sentencing options.
31.Finally, paragraph 8.1.1(d) directs the Tribunal to consider the impact of the offending on any victims where this information is available. The Tribunal notes that the victim’s evidence under cross examination was that from the moment the other male passenger got out of the car, she was ‘scared’. [27] Further, as referred to above, Her Honour in the sentencing remarks of the Local Court noted that she had read the victim’s report and found that she had been severely affected by the index offending.[28] The Tribunal accepts that the impact on the victim further reflects the serious nature of the Applicant's offending.
[27] G2 63.
[28] G2 49.
32.Having considered paragraph 8.1.1 of Direction 110 and based on the findings of the sentencing remarks of the New South Wales Local Court and the appeal judgement in the New South Wales District Court, the Tribunal finds the nature of the Applicant’s conduct to be serious. As a result, the Tribunal places significant weight on this consideration in favour of affirming the cancellation decision.
Risks to the Australian community
33.Paragraph 8.1.2 of the Direction 110 provides that in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the noncitizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
34.In measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[29] Her Honour stated that, to determine an unacceptable risk, one must evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future.
[29] Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
35.The Tribunal is required to assess the risk posed to the Australian community if the Applicant re-offends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[30] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, (as her Honour then was) considered the notion of risk and its nexus to future possibility. Her Honour noted:[31]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.’
[30] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[31] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
36.In Minister for Immigration and Ethnic Affairs v Guo[32] the High Court considered the extent to which past events can be a guide to the future. The Court stated:
‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.’
[32] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574].
37.As such, in the process of determining the chance of something occurring in the future a conclusion will need to be formed concerning past events.[33] Assessing what is likely to happen in the future based on past events involves questions of degree. In Minister for Immigration and Ethnic Affairs v Guo the court held that:[34]
‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity….’
[33] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].
[34] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574] – [575].
38.As to the nature of harm to individuals or the Australian community should the person engage in further criminal or other serious conduct, The Tribunal accepts the Respondent’s submission that if the Applicant was to re-offend in the future in the same or similar manner, he would likely cause serious psychological harm to vulnerable members of the community including women and children.
39.The Respondent submits that the harm caused from this offending is so serious, that any risk it may be repeated by the Applicant is unacceptable. It is submitted by the Respondent that effects of sexual crimes against women and children are so harmful to the Australian community that any risk of re-offending by the Applicant should be avoided by removing him for the community.
40.The Tribunal notes that at the time he was sentenced, the Applicant was assessed by community corrections as being at a high risk of re-offending. In addition, Her Honour in the sentencing remarks noted that the Applicant had denied the offending and said that the victim had made advances toward him.[35] Her Honour accepted the contents of the assessment report and found that the Applicant showed no insight into his offending. Her Honour noted that the report was in the context of him having plead not guilty and maintaining that plea and his innocence up to that time.[36]
[35] G2 46.
[36] G2 50.
41.The Applicant’s evidence to the Tribunal was that there is no risk he will re-offend in the future. While giving evidence to the Tribunal the Applicant became extremely emotional. He stated to the Tribunal that because of him being incarcerated and because of the spiritual counselling he has received in prison, he has come to realise that his actions were stupid and wrong. The Applicant repeatedly expressed his remorse for his actions and the harm that he had inflicted on the victim.
42.However, at the time of making his application to revoke the cancellation of his visa in January 2025, the Applicant did not appear to have any remorse for his actions. In his Request For Revocation of a Mandatory Visa Cancellation under s 501(3A) dated 31 January 2025[37] (‘the application’) the Applicant states that he was ‘faced with a drunk female who jumped into the front seat of my Uber and as she was intoxicated, she put me in a situation I have never experienced in my life.’[38] In addition, he claimed that the victim never told him her age and he was not able know she was two months underage of 18.[39] Finally, despite having plead guilty to the index offending the Applicant claims that he had ‘fought hard in court’ to prove his innocence.[40]
[37] G2 75.
[38] G2 77.
[39] G2 77.
[40] G2 77.
43.Finally, contrary to his plea of guilty and the victim’s evidence that was accepted by the court, the Applicant claimed in his application that he had maintained his innocence through the court process.[41] While he claimed that this did not mean he was not remorseful, he stated that he was so passionate that he was manipulated into a one-night stand that was consensual.[42] The Applicant claimed that he tried to stop her but unfortunately emotions took over. Nevertheless, he stated that he was extremely remorseful and would never do such a thing in his life again.[43] He stated that he had reached out to his chaplain and religious figures to seek protection.[44]
[41] HB1 79.
[42] Ibid.
[43] Ibid.
[44] Ibid.
44.The Tribunal was provided a psychological report dated 29 June 2025 by Deniz Dagli, Senior Clinical Psychologist (‘the psychological report’).[45] The Tribunal notes that the psychological report does not detail Ms Dagli’s qualifications and experience as a Senior Clinical Psychologist. In any event, the psychological report states that the Applicant presents a low risk of re-offending and demonstrates strong insight and a high degree of remorse for his actions. The psychological report states that the Applicant displayed a high level of emotional awareness and insight during the clinical interview. It refers to him openly acknowledging the harm caused by his actions and that he articulated deep emotional remorse, regret and shame. However, it does not refer to the fact that the Applicant had previously demonstrated limited remorse for his actions having initially denied the offending and claiming his innocence. There is no reference in the report as to the number of consultations Ms Dagli had with the Applicant or how they were conducted. In addition, no detail or information is provided as to the nature and purpose of each consultation and the Applicant’s reaction or response to the consultations. Finally, the psychological report appears to make conclusions about the Applicant’s culture, particularly about the risk of honour-based violence, without referring to any empirical evidence or authority for such conclusions. As such, the psychological report fails to address or explore any of the causal factors behind the Applicant's offending nor his limited insight into his actions at the time of the index offending.
[45] Psychological report dated 29 June 2025 by Deniz Dagli, Senior Clinical Psychologist, Mindsea Psychology.
45.Ms Dagli’s evidence to the Tribunal was that she had a total of three consultations with the Applicant via telehealth. Her evidence was that she had two 80-minute consultations with the Applicant, on 18 June 2025 and 25 June 2025, before writing the psychological report. Her evidence to the Tribunal was that each of these sessions focussed on the Applicant’s depression and anxiety. Her evidence was that each session was difficult as the Applicant became very emotional and quickly proclaimed his remorse, regret and shame for his actions. Her evidence was that she then had a further 50-minute consultation on 29 July 2025 that focussed on managing his depression. Her evidence was that her assessment of the Applicant’s risk of re-offending was based on his own self-reporting. Ms Dagli did not provide any evidence of her having conducted any clinical analysis concerning the causal factors of the Applicant’s offending for the purpose of determining his insight into his offending and the risks of him re-offending if he is to remain in the community. Therefore, based on the evidence provided in the psychological report and the evidence of Ms Dagli, the Tribunal places little weight on Ms Dagli’s opinion in relation to the Applicant’s risk of re-offending.
46.The psychological report[46] refers to the Applicant demonstrating numerous positive factors in support of a positive prognosis. These include:
·The Applicant having repeatedly expressed shame, guilt and regret and acknowledged the seriousness of his actions, recognised the pain caused, and accepted full responsibility. His emotional expression was congruent with reported thoughts, suggesting authenticity.
·The Applicant describing a strong belief system that has guided him to reflect on his behaviour and seek personal growth.
·The Applicant's employer having continued to offer support and a guaranteed position upon his release and his continued involvement in volunteer work through the House of Sadaqa organisation.
·The Applicant has complied fully with prison and detention centre expectations, with no reported behavioural infractions or breaches of bail.
·The Applicant has no documented history of criminal behaviour before this isolated incident.
[46] Ibid.
47.In addition, the psychological report[47] referred to the fact that the Applicant did avail himself of the limited supports available to him and maintained a strong personal commitment to change even though he does not have access to formal rehabilitation programs often reserved for high-risk or long-term offenders. The Applicant evidence was that he had attended a drug and alcohol course and an anger management course while in prison as they were the only courses available to him. The Applicant’s evidence was that he was not able to access the sexual conduct course due to his relatively limited time in prison. The Tribunal accepts the Applicant’s evidence as to why he did not access the sexual conduct course.
[47] Ibid.
48.The Applicant’s employer, Mr Mahmoud Chandab[48] stated that he is the Director of MCL Structures, a company engaged in the construction of multi-level buildings. Mr Chandab’s evidence was that the Applicant commenced work with the company in or about 2015 as a carpenter and proved to be a responsible and reliable worker who was valued within the company. His evidence was that the Applicant had obtained several different qualifications that made him a valuable employee to the company as he was qualified to perform several different jobs on a building site. His evidence was that the company would employ the Applicant if he were released into the community and that he would be provided accommodation close to his work.
[48] G2 110.
49.However, the Tribunal notes that it was Mr Chandab’s evidence that he was not aware that the Applicant had been working as an Uber driver. In addition, his evidence was that he had lent his vehicle to the Applicant but did not know that he used it to conduct his work as an Uber driver. While he stated that he was aware of the Applicant’s index offending he had only spoke to him briefly about the offences. As such he was not fully aware of the circumstances of the offending.
50.Mr Laidlaw’s[49] evidence was that he is the founder and CEO of House of Sadaqah, a charitable organisation that is focused on proving support, resources, healthcare and education through community focused initiatives. He stated that the Applicant had been actively involved in the organisation as a volunteer. His evidence was that the Applicant had been an honest, respectful and reliable volunteer for the organisation. The Tribunal accepts that the Applicant has been active within the organisation as claimed. Mr Laidlaw’s evidence was that he was aware of the Applicant’s index offending. He confirmed that he was aware the offences involved the touching of a young female but believed it had been consensual. In addition, he stated that he was not aware of the age of the female victim.
[49] G2 109.
51.Mr Akkouch[50] is a friend of the Applicant and fellow worker at MCL Structures. His evidence was that the Applicant was hard working and honest. He claims that the Applicant explained to him the nature of his index offending and stated that the Applicant had explained they occurred due to the Applicant’s lack of knowledge and experience on how to deal with certain situations involving females. However, the Tribunal notes that at the time of the index offending the Applicant was 37 years of age at the time and had been living in Australia for approximately 10 years. Therefore, given the Applicant’s age, the time he has been in Australia and marital status, the Tribunal does not accept Mr Akkouch’s evidence that the Applicant lacked theknowledge and experience to deal with certain situations involving females, as claimed.
[50] G2 111.
52.Based on the evidence given by Mr Chandab, Mr Laidlaw and Mr Akkouch, the Tribunal accepts that the Applicant will have continued support from his employer and as a volunteer with the House of Sadaqa organisation. However, such support is of limited value in identifying the causal factors of the Applicant's offending and as such is of limited use in understanding his risk of re-offending. While Ms Dagli has diagnosed the Applicant with Major Depressive Disorder, Recurrent, Moderate, with Anxious Distress, there is no evidence that the contributory factors of his offending were linked to psychological condition. In fact, Ms Dagli in the psychological report appears to link the Applicant’s diagnosis of depression and anxiety to his ‘prolonged institutionalisation’ in prison and immigration detention, legal uncertainty and his inability to fulfil his role as a father and husband.[51]
[51] Psychological report dated 29 June 2025 by Deniz Dagli, Senior Clinical Psychologist, Mindsea Psychology.
53.The Tribunal notes that pursuant to paragraph 8.1.2 of the Direction 110 in considering the need to protect the Australian community from harm, the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Further, in assessing the risk that may be posed by the Applicant, the Tribunal must have regard on a cumulative basis to the nature of the harm to individuals or the Australian community and the likelihood of the Applicant engaging in further criminal or other serious conduct.
54.In this case the conduct is of the most serious nature. In Mendoza and Minister for Immigration and Border Protection[52] Senior Member Puplick observed (in the context of domestic violence) that the Australian community, rightly, professes zero tolerance for violence against women. The Applicant has committed sexual offences against a minor in circumstances where his conduct was predatory in nature having abused her trust and taken advantage of the fact that she was intoxicated and alone in the vehicle with the Applicant. In circumstances where the causal factors of the Applicant's offending have not been clearly identified, the Tribunal has placed little weight on the psychological report and the evidence of Ms Dagli as to the Applicant’s risk of re-offending. As such, the Tribunal finds that the Applicant's offending represents an unacceptable risk to the Australian community and as such weighs strongly in favour of the cancellation of the Applicant's visa.
[52] [2018] AATA 686, [48].
Family violence committed by the non-citizen
55.The Tribunal notes that paragraph 5.2(8) of Direction 110 provides:
'The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.'
56.Direction 110 defines family violence to mean ‘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’. The examples of behaviour that may constitute family violence include assault and a sexual assault or other sexual abusive behaviour.[53]
[53] Paragraph 4(1)(a) and (b) of Direction 110.
57.Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Tribunal notes that paragraph 8.2(2) of Direction 110 provides that this consideration is relevant in circumstances where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence and the non-citizen has been afforded procedural fairness.
58.In assessing the seriousness of the family violence, paragraph 8.2(3) of Direction 110 provides that the Tribunal must consider:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
59.The Applicant was charged with the following domestic violence offences which were withdrawn (the withdrawn charges):[54]
(a)common assault (DV)-T2 (charged on 6 October 2019)
The NSW Police report states[55] that at about 1.00am the Applicant and his then wife, Ms Zulfiqar engaged in a verbal argument at their home. Ms Zulfiqar left the room with the keys resulting in the Applicant chased her around the living room, grabbing her arm and neck by force, striking her with an open palm to the head and grabbing her by the hair.. Witnesses heard banging and screaming including Ms Zulfiqar stating, "Stop hitting me… please leave me alone" and the sound of skin being slapped with an open palm. At about 3.30am witnesses contacted police as they were concerned for the victim’s safety. When the police arrived the Applicant and Ms Zulfiqar denied the allegations. The Applicant denied any allegation of the assault, stating that he jumped over the couch while chasing after his wife and lost balance and as a result grabbed her hand. Police applied for an Urgent Provisional Apprehended Domestic Violence Order on behalf of the Ms Zulfiqar and witnesses.
On 14 October 2019 an Application for an Apprehended Violence Order was made against the Applicant in New South Wales Local Court at Burwood.[56] On 19 March 2020 an Apprehended Domestic Violence Order was made to protect Ms Zulfiqar as well as two other female household members until 18 March 2021.[57]
It was noted by the Respondent’s counsel that the Applicant had consented to the order being made ‘without admission.’ As such it was submitted that the allegations upon which the order was made had not been proven and as a result the Applicant had not been afforded procedural fairness as required under the paragraph 8.2 of Direction 110. The Tribunal does not accept this submission. The Applicant was afforded procedural fairness by reason that it was open to him to contest the application. The fact that he has pleaded guilty without admission does not mean the Applicant has been denied procedural fairness in determining the matter.
(b)sexual intercourse without consent (DV)-SI (charged on 14 September 2021)
The NSW Police report states[58] that the Applicant the Applicant and Ms Zulfiqar were married in 2018 and had been separated and living apart for a few months. They had been speaking about their relationship and had agreed to meet at their home to try and sort out the problems they faced in their marriage. The Police Report states that theApplicant and Ms Zulfiqar spoke in the vehicle for 10 minutes before the Applicant leant over the Ms Zulfiqar and kissed her on the left cheek. Ms Zulfiqar stated to the Applicant ‘please don't do this, I'm not comfortable’ to which the Applicant replied, ‘please I miss you.’ The Applicant then climbed over the centre console of the vehicle and positioned himself on top of Ms Zulfiqar before lowering her car seat and kissing her on the lips, face and neck. The Police report states that theApplicant unbuckled his pants and engaged in intercourse for 5-6 minutes. During this time, Ms Zulfiqar said to the Applicant ‘no don't do this please, no.’ After the applicant had finished, Ms Zulfiqar stepped out of the vehicle and called triple zero for assistance from police. The Applicant followed the Ms Zulfiqar and grabbed the phone out of her hand, ending the call and put her phone on aeroplane mode. Police attended the location a short time later and arrested the Applicant.
The Tribunal notes that NSW Police reports states that on 20 September 2021 Ms Zulfiqar was charged by Bankstown Detectives for ‘False representation resulting in police investigation’.[59]
[54] Summons produced from NSW Police on 3 July 2025, p 9.
[55] HB5 414.
[56] ST1 20.
[57] ST1 22.
[58] HB5 408.
[59] HB5 409.
60.The Applicant was not convicted of common assault charge or the sexual intercourse without consent charge. .
61.The Respondent submits that for the purposes of paragraph 8.2 of Direction 110 the Tribunal should consider the police reports in respect of each of the charges (notwithstanding that were withdrawn) as ‘independent and authoritative sources’ of the Applicant having engaged in acts of family violence. As a result the Respondent submits they should weigh very strongly against revocation of the cancellation decision.
62.In Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43 (at [36]-[39]), Burley J rejected the argument that the Tribunal had erred by finding police reports to be ‘independent and authoritative sources’, in the way that phrase was used in relation to consideration of family violence in the previously in force Direction 90. His Honour found that Tribunal had not erred in concluding that the police narratives may be considered to be ‘independent and authoritative sources.’[60] His Honour stated:[61]
'The question of what may be considered to be an independent and authoritative source is left to the decision maker, being a question of evaluation having regard to the nature of the conduct and the circumstances of the particular case.’
[60] [2023] FCA 43 at [39].
[61] [2023] FCA 43 at [36].
63.While the domestic violence acts recorded in the NSW Police Reports involved violent behaviour by the Applicant towards Ms Zulfiqar, the Tribunal notes that in respect of the common assault charge Ms Zulfiqar and the Applicant denied the allegation of assault with the charge ultimately being withdrawn. However, on 19 March 2020 an Apprehended Domestic Violence Order was made to protect Ms Zulfiqar as well as two other female household members until 18 March 2021. The NSW Police report[62] states that at about 3.45am the police spoke to witnesses who were visibly distressed by the Applicant’s actions and were fearful of the accused. While the Tribunal accepts that the order was made with the Applicant’s consent and ‘without admission’ the police report nevertheless represents, an independent and authoritative source of the Applicant having engaged in an act of family violence. As a result, the Tribunal gives some weight to this consideration against the revocation of the cancellation decision
[62] HB5 414.
64.As to the sexual intercourse without consent, the Tribunal notes that in relation to this charge Ms Zulfiqar was charged by Bankstown Detectives for ‘False representation resulting in police investigation’.[63] It was not clear to the Tribunal as to the nature and extent of the false representations Ms Zulfiqar had been charged with. Nevertheless, in circumstances were there was no independent witness and Ms Zulfiqar was charged with making a false representation thetribunal does not accept that Police Report cannot be described as an ‘independent and authoritative source’ for the purposes of paragraph 8.2 of Direction 110. Accordingly, the Tribunal places no weight on the sexual office charge in relation to revocation of the cancellation decision.
[63] HB5 409.
The strength, nature and duration of ties to Australia
65.Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the Applicant’s immediate family are his father, stepmother, two brothers, two stepbrothers and a stepsister.
66.Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:
(a) how long the Applicant has resided in Australia, including whether the Applicant arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the Applicant has spent contributing positively to the Australian community; and
(b)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.
67.In this case the Applicant has no immediate family in Australia. In fact, the Applicant’s wife and child reside in Pakistan as does the balance of his family members.[64] Accordingly the Tribunal gives this consideration no weight in favour of revoking the cancellation decision.
[64] HB1 98, 91 & 93.
68.The Applicant arrived in Australia on 10 April 2015 (at the age of 27) and resided in Australia for approximately 10 years. The Applicant has been engaged in the community through his employment as a carpenter and operator of heavy construction machinery with MLC Constructions. The evidence of Mr Chandab and Mr Akkouch was that he was reliable and valuable employee of the company. In addition, they gave evidence to the effect that he had become a family friend. Their evidence was that they and their family had socialised with the Applicant on a regular basis. As such the Tribunal accepts that the Applicant has formed some ties to the Australian community through his employment.
69.In addition, Rob Bilal Laidlaw (CEO of House of Sadaqa), provided a letter of support for the Applicant and gave oral evidence stating that the Applicant had made a valuable contribution to the House of Sadaqa as volunteer.[65] His evidence was that as a volunteer with the House of Sadaqa the Applicant had been assisting in clothing distribution, managing the warehouse and collection of donations, and mentoring individuals in need.
[65] G2 109.
70.The Applicant provided reference letters from the following friends and colleagues in Australia, who advocate for his character:
(a) Mahmoud Chandab (Director of MLC Structures), dated 29 January 2025, 27 February 2025 and 25 June 2025.[66]
(b) Mohamed Ali Maarbani, dated 30 January 2025 (friend).[67]
(c) Marwan Akkouch, dated 6 February 2025 and 29 June 2025 (roommate and manager).[68]
[66] G2 110, 120 and ASFIC, p 8.
[67] G2 108.
[68] G2 111.
71.The Applicant claims that he has attained a Diploma of Leadership and Management[69] at an educational institute in Australia but did not provide any independent or documentary evidence in relation to his qualification.
[69] G2 95.
72.Based on the evidence provided, the Tribunal accepts that the Applicant has developed social links with Australian citizens and Australian permanent residents while he has been in Australia. As such, the Tribunal gives this consideration some weight in the Applicant's favour of revoking the cancellation decision.
Best interests of minor children in Australia
73.Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.
74.In this case, the Applicant has only one child who resides with her mother (the Applicant’s wife) in Pakistan.[70] As such the Applicant’s child would not be adversely affected by the Applicant’s removal from Australia. The Applicant submits he is the primary emotional and financial support for his child and that she would be ‘deprived of food and shelter.’ The Applicant claims that it was his intention to bring his wife and child to Australia. He claims a decision to cancel his visa will prevent them from being able to come to Australia and would deprive his child of the education and quality of life he had intended for her.[71] The Tribunal notes that there is no independent evidence (including for the Applicant’s wife) as to the impact that cancelling the Applicant’s visa would have on his child, including if she would leave Pakistan to come to Australia if the Applicant's visa is not cancelled. Finally, he claims that his wife and child remain vulnerable to threats and intimidation in Pakistan due to family and tribal retaliation.[72]
[70] G2 89.
[71] G2 90.
[72] ASFIC, 49.
75.However, the heading of this consideration is directed at minor children who are located in Australia. Accordingly, the Tribunal does not accept that the Applicant’s child located in Pakistan is a relevant child for the purposes of paragraph 8.4 of Direction 110. However, that does not mean the Applicant’s child overseas cannot be considered under paragraph 9 of Direction 110 being ‘Other considerations.’
76.As such, in circumstances where the Applicant’s child is not in Australia, and in the absence of any independent evidence that the Applicant child would be affected by a non-revocation decision, the Tribunal gives neutral weight to this consideration.
Expectations of the Australian community
77.Paragraph 8.5(1) of Direction 110 provides that 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.
78.Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
79.Critically, 8.5(4) states:
This consideration is about the expectation of the Australian Community as a whole, and in this respect, decision makers should proceed on the basis of the Government views as above, without independently assessing the community’s expectations in the particular case.
80.In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[73] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[74] In doing so the Tribunal is required to consider the specific circumstance of the Applicant’s case.[75]
[73] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].
[74] Ibid.
[75] Kelly [2022] FCA 396, [98]-[109] (Beach J).
81.The Respondent submits that the Applicant’s conduct is contrary to the expectations of the Australian community. It is the general expectation of the community that the Government will not allow non-citizens who have engaged in a serious breach of Australian laws to enter or remain in Australia.[76] In addition, community expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[77]
[76] Paragraph 8.5(2) of Direction 110.
[77] Paragraph 8.5(3) of Direction 110.
82.In this case the Applicant has committed a serious offence, and that offence was against a female and a minor. The Applicant actions were predatory in nature in that he acted in circumstances where the victim was under the age of 18 years, was alone in the vehicle with him and had diminished capacity by reason of the fact that she was intoxicated. In the Tribunal’s view it was an opportunistic, calculated, callous and cowardly act that was committed without any regard for the victim or the consequences it may have had on her or the community more generally.
83.While the Applicant was highly emotional before the Tribunal and claimed his remorse and regret for his actions, little has been presented to the Tribunal to explain the causal factors of the Applicant’s offending from which some insight may be derived as to the risk of him re-offending if he is to remain in the community. The Tribunal notes that the Applicant’s offending appeared to come from ‘out of the blue’, contrary to his respectable behaviour at work and with his friends. The Applicant himself was not able to provide any reasonable explanation for his actions. In such circumstances, the only conclusion that can be made was that the Applicant acted in a predatory, opportunistic manner towards the victim in the belief that there would be no consequences for his actions.
84.In all the circumstances, the Tribunal finds that the Applicant does represent an unacceptable risk to the Australian community. Accordingly, it finds that the general expectation of the Australian community is that the Government will not allow the Applicant, having engaged in such a serious crime, to remain in Australia. As such, the Tribunal has given significant weight to this consideration in favour of not revoking the cancellation decision.
Other considerations
85.In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, the Tribunal must consider the ‘other considerations’ listed in Direction 110. These considerations are not exhaustive.[78]
[78] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal consequences of the decision
86.Paragraph 9.1 states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) 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 in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
87.The Applicant claims that if he is returned to Pakistan he will be seriously or significant harmed for the purposes of s36(2)(a) and s36(2(aa) of the Migration Act 1958. . By doing so the Applicant has attempted to engage Australia's international non-refoulement obligations. The Tribunal is therefore obliged to 'read, identify, understand and evaluate the applicant’s claims'.[79]
[79] Paragraph 9.1.2 of Direction 110; FYBR v Minister for Home Affairs [2019] FCAFC 185, [73] - [75] (Charlesworth J), [103] - [104] (Steward J).
88.However, paragraph 9.1.2(2) of Direction 110 makes clear that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the s 501/s 501CA stage to consider non-refoulment issues in the same level of detail as those types of issues are considered in a protection visa application.
89.The Applicant claims that if he is returned to Pakistan he will be seriously or significantly harmed by reason of the following:
(a)The Applicant claims that he has brought shame upon his family due him ending his marriage with his ex-wife and accusing her of infidelity. He claims that because of his divorce his ex-wife’s family have threated to seriously harmed him and his family. The Applicant claims that his ex-wife’s family are politically influential and as a result will be able to harm the Applicant. He claims that the threats of violence have included an armed based attack on his family’s home in Pakistan.
The Applicant did not provide the Tribunal with any independent witness statements in support of his claim that his ex-wife’s family had threatened him and had attacked his family home as claimed. In support of his claims, the Applicant provided what he described as a police report[80] and a news article.[81] However, the Tribunal notes that these documents appear to have been re-typed into a document. The newspaper article does not disclose the name or the date of the newspaper. In addition, the police report does not appear to be an official document. The Applicant’s evidence was that the police report was obtained for him by a fellow inmate while he was in detention. Therefore, in circumstances where the documents provided do not appear to be authentic and the fact that the country information reports[82] that document fraud is widespread in Pakistan, the Tribunal places no weight on the newspaper article and police reports provided to the Tribunal.
Finally, the Applicant claims that his ex-wife is related to Azam Nazer Tara, a Minister in the Federal Government and a member of the Pakistan Muslim League, and as a result he has the status and power to give his ex-wife’s family significant influence. The Applicant provided the Tribunal with a google search of Mr Tara but did not provide any evidence that he was a member of his ex-wife’s family. There was no evidence that connected Mr Tara to his ex-wife’s family or to indicate that he provided her family with the influence as claimed. As a result, the Tribunal does not accept that the Applicant’s ex-wife’s family are related to Mr Tara as claimed and do not have the political influence as claimed.
Therefore, based on the evidence provided by the Applicant, the Tribunal has serious reservations about his evidence concerning his ex-wife’s political influence and threats he and his family have received as claimed.
(b)The Applicant claims that there is a real chance he will be seriously harmed if he is returned to Pakistan because of death threats he has received from his family (in particular his brother) in Pakistan. The Applicant’s evidence was that because of his index offending his family have become very angry with him for having brought shame on the family. As a result, he claims they have threatened to kill him if he is returned to Pakistan.
The Applicant claims he has received death threats from his brother and provided copies of undated WhatsApp text messages between him and his brother as evidence of the threats. The Tribunal notes that the translation provided has not been performed by an authorised or accredited translator. In any event, despite having been threatened by his brother he appears to remain in contact with him. As a result, the Tribunal has serious reservations about the Applicant’s evidence in relation to threats he claims to have received from his family in Pakistan.
(c)The Applicant claims that if he was returned to Pakistan, he would experience systemic discrimination by the authorities as his passport would be cancelled and as a result he would be trapped in the country to be harmed by his family and his ex-wife’s family. The Applicant provided a newspaper article[83] that indicated that Pakistan intends to cancel the passport of its citizens who are deported from other countries for illegal activities. The article was not provided to the Tribunal within the two-day limit. As a result, the Tribunal is not required to take it into consideration. Nevertheless, the Tribunal notes the newspaper article refers to the Pakistan Government taking such action in response to Middle East countries complaining about begging and undocumented migration by Pakistan nationals. It is not clear from the article provided that the Applicant’s passport would be cancelled upon his return as claimed. The Tribunal notes that Article 13 of the Pakistan Constitution and section 403 of the Criminal Procedure Code guarantees the right against double jeopardy in Pakistan. Further, the country information reports[84] that failed asylum seekers returning to Pakistan face a low risk of official discrimination or societal discrimination because of their behaviour while living overseas. In any event, if it is found that the Applicant would be seriously or significantly harmed in Pakistan he would not be returned and as a result the issue of the cancellation of his passport would be irrelevant.
[80] HB4 339-341.
[81] HB4 343.
[82] DFAT Country Information report Pakistan 30 April 2025 (DFAT Report) p.86.
[83] Arab News 29 July 2025.
[84] DFAT report p.83.
90.Therefore, given the complexity of the Applicant’s claims for protection and the Tribunal’s concerns about the Applicant’s evidence relating to those claims and in circumstances where the Applicant has made a valid application for a protection visa, the Tribunal is of the view that it would be more appropriate to defer consideration of the Applicant's claims concerning Australia's non-refoulement obligations until they can be fully assessed in accordance with the protection visa application process. In this case the Applicant’s claims require a complex assessment of Australia's international obligations and of the Applicant’s particular circumstances.[85] As such, the Tribunal finds that the most appropriate course is for the Tribunal to defer consideration of the Applicant's non-refoulement claims to the ongoing protection visa application process, during which the Applicant's claims will be comprehensively assessed.
[85] Plaintiff M1 v Minister for Home Affairs [2022] HCA 17.
91.The Tribunal notes that the Applicant cannot be removed until this process is completed.
Extent of impediments if removed
92.Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to Pakistan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
93.The Applicant is a Pakistani citizen. He is 38 years of age and has not been diagnosed with any serious health issues. He arrived in Australia when he was approximately 27 years of age and has returned to Pakistan on two occasions to visit family and friends. The Applicant claims that he has been diagnosed with tinnitus which has affected his general wellbeing.[86] While access to medical care may be more difficult in Pakistan than in Australia, there was no evidence that as a Pakistan citizen he would be denied access to medical care on a discriminatory or systematic basis.
[86] G2 90.
94.The Tribunal accepts that the Applicant suffers from mental health problems including his recent diagnosis of "Major Depressive Disorder, Recurrent Moderate with Anxious Distress" which may require treatment. The country information reports[87] that health heath issues are common in Pakistan with approximately 4 percent of the population being affected by a mental health condition. It is reported that Government hospitals have mental health units where medication and treatment for mental illness is often provided free of charge through the public system. Nevertheless, the Tribunal accepts that the quality and availability of mental health services can vary considerably throughout the country. Nevertheless, there was not evidence that the Applicant as a Pakistan citizen would be denied access to mental health care on systemic and discriminatory basis. Dr Dagli noted that reconnecting with his young child may offer "restorative meaning and further strengthen motivation" which may occur if he returns to Pakistan. The Applicant would also have familial support of his wife and daughter who reside in Pakistan.
[87] DFAT report at p. 12.
95.There is no evidence to indicate that the Applicant would face any substantial cultural or linguistic barriers in respect of his return to Pakistan given he has spent his formative years there.
96.The Applicant submitted to the Department that he is concerned about experiencing poverty in Pakistan and is the sole financial provider for his wife and child in Pakistan. The Applicant also claims that he has been financially supporting his nieces and nephews with their schooling needs.[88] The Tribunal accepts that the Applicant would experience some difficulty in re-establishing himself in Pakistan. But the Tribunal notes that he worked as carpenter in Pakistan until his departure for Australia. In Australia he has worked initially as a carpenter but has gain further experience and qualifications in the construction industry in Australia that he will be able to apply in Pakistan. The Applicant has displayed the necessary qualities both in Pakistan and Australia to be able to find full time employment for the purposes of supporting himself and his family. The Tribunal accepts that the Applicant fears not being able to support his family in the event he is returned to Pakistan but given his work ethic, training and experience the Tribunal finds that he would be able to find full time employment anywhere in Pakistan upon his return.
[88] G2 92.
97.In summary, the Tribunal accepts that the Applicant is likely to face some impediments if removed from Australia, but that any weight afforded to this consideration in favour of the Applicant is outweighed by Primary Considerations relating to the nature and seriousness of the Applicant’s conduct and, the risk to the Australian community and the expectations of the Australian community. The Tribunal gives this consideration some weight in favour of non-revocation of the cancellation decision.
Best Interest of Applicant’s minor child in Pakistan
98.As referred to above the Applicant has a young child in Pakistan who he claims will be affected by a non-revocation decision. The Applicant claims that it was his wish to bring his wife and child to Australia. If he is returned to Pakistan, his child would be prevented for receiving the education and lifestyle the Applicant had planned for her. While the Tribunal accepts that by being returned to Pakistan the Applicant will not be able to bring his child to Australia, she presently has the care and support of her family in Pakistan and the Applicant would be reunited with her upon his return to Pakistan. As such the Tribunal gives this consideration neutral weight in favour of revoking the cancelation decision.
Impact on Australian business interests
99.Paragraph 9.3 of Direction 110 provides that a decision maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia.
100.The director of MLC Structure's, Mahmoud Chandab, provided a letter dated 27 February 2025 conforming he is as a carpenter at MLC Structures Pty Ltd, and that his ongoing employment is crucial for their business operations. Mahmoud Chandab evidence to the Tribunal was that the Applicant was a reliable and valuable employee of the business, and that considerable time and money had been invested in the Applicant in obtaining various qualifications. His evidence was that because the Applicant held various qualifications, he was able to perform multiple jobs making him a valuable member of the workforce. His evidence was that for the time the Applicant had been incarcerated he had engaged alternative workers to perform the same tasks. Asa a result Mr Chandab’s evidence was that the Applicant's removal from Australia would constitute a major financial loss for MLC Structures and the Australian economy as over $20,000 in training licencing and accreditation has been invested into the Applicant and that the Applicant is equivalent to four tradesmen due to his skills and licences.[89]
[89] G2 120 121.
101.While the Tribunal accepts that the Applicant has been a valuable and reliable worker for MCL Structure and that his return to Pakistan would represent a cost to its business. However, there was no evidence to suggest that a refusal decision in the Applicant’s case would significantly compromise the delivery of a major project, or delivery of an important service in Australia. On Mr Chandab own evidence MLC Structures Pty Ltd has continued operate in the Applicant's absence albeit losing new client opportunities due to the Applicant's role in developing client trust and long-term relationships.[90]
[90] Applicant’s further evidence p.8.
102.As a result, the Tribunal finds that this consideration should be given nominal weight in favour of the Applicant and finds that it is outweighed by the considerations relating to the nature and seriousness of the Applicant conduct and, the risk to the Australian community and the expectations of the Australian community Primary Considerations 1 and 5.
CONCLUSION
103.The Tribunal has considered the specific circumstances in relation to the Applicant. Given the Applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
104.The primary consideration is the protection of the Australian community. Having considered the primary and other considerations in Direction 110, the Tribunal affirms the decision under review. In circumstances where the Direction 110 requires that greater weight must be given to the primary consideration of protecting the Australian community from criminal or other serious the Tribunal finds that this consideration outweighs the other considerations given in favour of the Applicant. Paragraph 5.2(2) of Direction 110 states that the safety of the Australian community is the highest priority of the Australian Government. The Applicant has been convicted of offences of a sexual nature involving a minor. Considering the very serious nature of the Applicant's offences and the risk to the Australian community should he re-offend in a similar manner, any risk that the Applicant may re-offend is one that should not be tolerated by the community.
105.As such, the Tribunal is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.
DECISION
106.The Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.
I certify that the preceding 106 (One Hundred and Six) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.
…………[sgd]……………………….
Dated: 8 August 2025
Date of hearing:
30 & 31 July 2025
Solicitor for the Applicant:
Counsel for the Applicant
Advocate for the Respondent:
Ms Reema Zraika
Mr Nic Angelov of Counsel
Ms Rhonda Lee of Clayton Utz
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