BDFW and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 109
•11 February 2025
BDFW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 109 (11 February 2025)
Applicant/s: BDFW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9840
Tribunal:General Member K. Thornton
Place:Melbourne
Date:11 February 2025
Decision:The Tribunal affirms the decision under review.
..................[SGD]..................
General Member K. Thornton
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Iraq – where Applicant granted Class XB (Subclass 200) Refugee visa – failure to pass good character test – substantial criminal record – whether another reason to revoke the mandatory cancellation of Applicant’s visa – Ministerial Direction No. 110 applied – decision affirmed
Legislation
Migration Act 1958 (Cth)
Sex Offenders Registration Act 2004 (Vic)Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Uelese v Minister for Immigration and Border Protection [2016] FCA 348Secondary Materials
Commonwealth Ombudsman, Monitoring Commonwealth Places of Detention – Annual Report of the Commonwealth National Preventative Mechanism under the Optional Protocol to the Convention Against Torture (January 2023)
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story 2019 (release date 5 June 2019)
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
Statement of Reasons
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Refugee (Class XB) (Subclass 200) visa.
The hearing was held on 3 and 4 February 2025 at the Tribunal’s Melbourne registry. The Applicant was represented by Mr Anthony Krohn of counsel, instructed by AUM Lawyers. The Respondent was represented by Mr Adam Cunynghame, special counsel, of Sparke Helmore Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 24-year-old citizen of Iraq.[1] He first arrived in Australia with his family in 2015 as a 15-year-old.[2]
[1] Exhibit R1, 383 [5].
[2] Ibid 332.
The Applicant has a lengthy criminal history dating back to 9 December 2020.[3] He continued to offend after that time until he was sentenced for his most serious charges of sexual offences against children aged under 16 years, for which he received a total effective sentence of five years, three months’ imprisonment in September 2021.[4]
[3] Ibid 48-9.
[4] Ibid.
On 12 October 2021, a delegate of the Respondent cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[5] The basis of the cancellation was because the delegate was satisfied that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act.[6] On 8 November 2021, the Applicant sought revocation of the mandatory cancellation decision.[7]
[5] Ibid 325-331.
[6] Ibid 326.
[7] Ibid 113.
On 20 November 2024, a delegate of the Respondent decided not to revoke the mandatory cancellation decision pursuant to s 501CA(4) of the Act (‘non-revocation decision’).[8] On 27 November 2024, the Applicant sought review of the non-revocation decision.[9]
[8] Ibid 14-5.
[9] Ibid 1-13.
TRIBUNAL HEARING
The hearing proceeded in person at the Tribunal’s Melbourne Registry. The Applicant appeared via video from prison. The Tribunal received into evidence a Joint Tender Bundle which contained the entirety of the material in the matter, comprising 525 pages.[10]
[10] Exhibit R1.
The Applicant gave evidence and was cross-examined. The Applicant also called evidence from the following witnesses, who all gave evidence in person (with the exception of the Applicant’s half-sister (LM), who gave evidence via video):
(a)The Applicant’s older brother (ARS) (assisted by an interpreter).
(b)The Applicant’s minor sister (RS).
(c)Family friend of the Applicant (SK) (assisted by an interpreter).
(d)The Applicant’s father (RS) (assisted by an interpreter).
(e)The Applicant’s mother (BA) (assisted by an interpreter).
(f)The Applicant’s younger brother (ABS) (assisted by an interpreter).
(g)The Applicant’s half-sister (LM).
LEGISLATIVE FRAMEWORK
Section 500(1)(ba) of the Act provides that application may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
Section 501 of the Act deals with the refusal or cancellation of visa on character grounds. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraphs (6)(a) (‘substantial criminal record’) or 6(e) (‘sexually based offences involving a child’) and the person is serving a sentence of imprisonment on a full-time basis for an offence against a law of the Commonwealth, a State or Territory.
Section 501(7) defines what is meant by ‘substantial criminal record’. Relevantly, s 501(7)(c) 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.
Section 301CA(4)(b) provides that the Minister may revoke the original decision if the Minister is satisfied that that person passes the character test (as defined by s 501), or that there is another reason why the original decision should be revoked.
ISSUE
Does the Applicant pass the character test?
The Applicant concedes that he does not pass the character test.[11] The Applicant was sentenced to a term of imprisonment of five years and three months on 9 September 2021.[12] Therefore, the Applicant has a substantial criminal record within the meaning of s 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined by s 501(7).
[11] Ibid 383 [4].
[12] Ibid 53-5.
The Tribunal therefore makes a finding that the Applicant does not pass the character test. Therefore, the Applicant cannot rely on s 501(4)(b)(i) to seek revocation of the mandatory cancellation decision.
Is there another reason why the original decision should be revoked?
The remaining issue for the Tribunal to consider is whether there is another reason why the original decision should be revoked under s 501(4)(b)(ii) of the Act.
In determining this question, the Tribunal must comply with a direction given under s 499(1) of the Act.[13] Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers.
[13] Section 499(2A) of the Act.
In this case, ‘Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ applies (‘the Direction’). The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act.[14]
[14] Direction 110, 5.1(4).
DIRECTION 110
The principles contained at paragraph 5.2 of the Direction provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. Those principles are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The factors (to the extent they are relevant in a particular case) that must be considered in making a decision under s 501 or s 501CA of the Act are identified in Part 2 of the Direction.[15]
[15] Direction 110, 5.2.
Part 2, paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in ss 8 and 9 of the Direction where relevant to a decision.
Paragraph 7 provides guidance in taking the relevant considerations into account:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction identifies five primary considerations as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations which must also be taken into account where relevant. Those considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Primary consideration 1: Protection of the Australian community
Paragraph 8.1 of Direction 110 provides:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal has had regard to the matters listed in paragraph 8.1(1) of the Direction. The Tribunal has had particular regard to the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, or have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction provides that decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Each of these will be addressed in turn.
The nature and seriousness of the conduct
Paragraph 8.1.1(1) provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent and/or sexual nature against women or children regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a noncitizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention.
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
f)the cumulative effect of repeated offending;
g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
To understand the nature and seriousness of the Applicant’s criminal offending and other conduct to date, it is useful to set out a chronology of the Applicant’s offending history.
The Applicant’s first conviction was recorded on 9 December 2020 when the Applicant was 20 years of age.[16] On that date the Applicant was convicted and sentenced for Robbery, Obtain property by deception, Possess prohibited weapon without approval and Commit an indictable offence whilst on bail. The Applicant was convicted and sentenced to a 12-month Community Correction Order.
[16] Exhibit R1, 48-9.
On 16 February 2021, the Applicant was arrested and remanded into custody for the offences for which he was sentenced in the County Court.[17]
[17] Ibid 68 [40].
On 29 April 2021, the Applicant was fined the sum of $750, without conviction, for driving and other minor offences.[18]
[18] Ibid 48.
On 9 September 2021, the Applicant was convicted in the County Court of Victoria of the following offences:[19]
·Ten charges of Sexual penetration of a child under 16;
·Two charges of Involve child in the production of child abuse material;
·One charge of Common law assault; and
·Two summary charges of Commit indictable offence whilst on bail.
[19] Ibid.
The Applicant was sentenced to a total effective sentence of five years, three months’ imprisonment with a non-parole period of three years.[20] The Applicant was also ordered to comply with the reporting conditions of the Sex Offenders Registration Act 2004 (Vic) for life.
[20] Ibid 53-5.
On 9 August 2022, the Applicant was fined the sum of $500, without conviction, for driving offences.[21]
[21] Ibid 48.
On 20 June 2023, the Applicant was convicted and sentenced to an aggregate of one month’s imprisonment for Obtain property by deception and Commit indictable offence whilst on bail.[22] Also on that date, the Applicant was sentenced for Contravene Community Correction Order in relation to the Order imposed on 9 December 2020.[23] For breaching that Order, the Applicant was sentenced to three months’ imprisonment. Both terms of imprisonment were ordered to be served concurrently.
[22] Ibid.
[23] Ibid.
The circumstances of the Applicant’s offending for which he was sentenced in the County Court were summarised by the sentencing judge at paragraphs 10 through to 29 of the sentencing remarks.[24] The Applicant’s offending spanned over a 12-month period from 1 January 2020 to 21 January 2021 whilst the Applicant was aged between 19 and 20 years of age.[25] The Applicant was aged 20 at the time of sentence.[26]
[24] Ibid 61-6.
[25] Ibid 60 [8].
[26] Ibid.
There were three female victims of the Applicant’s offending, who were aged between 13 and 14 years at the time.[27] The offences involved the Applicant communicating with the victims through social media and arranging to meet them or collect them from various locations.[28] The Applicant then supplied each of his victims with alcohol and drugs. The Applicant committed various acts of sexual penetration on these victims. The Applicant filmed two of these victims performing sexual activities on himself and an accomplice.[29] One of the victims was assaulted by the Applicant during this sexual offending when he put his hands around her throat and choked her.[30]
[27] Ibid 60 [9].
[28] Ibid 61-6.
[29] Ibid 64.
[30] Ibid 62-3.
The sentencing judge found that the seriousness of the Applicant’s offending was indicated by the following factors:[31]
[31] Ibid 75.
(a)The age difference between the Applicant and each of the victims was six years;
(b)One victim was aged only 13 years at the time;
(c)The offending took place over an extended period, being one year;
(d)The Applicant offended against three separate underaged victims over seven separate incidents;
(e)Except for the first incident, the offending occurred whilst the Applicant was on bail or was serving a Community Correction Order;
(f)The Applicant supplied alcohol and cannabis to the victims prior to the offending;
(g)The Applicant did not use a condom during the offending, which increased the risk of pregnancy or sexually transmitted infections, although the sentencing judge noted there is no evidence that that occurred in this case;
(h)The Applicant organised with friends to have sexual intercourse with the victims at the same time; and
(i)There was a level of planning and brazen behaviour on the Applicant’s behalf.
The sentencing judge also had regard to the Victim Impact Statements filed in the matter, which described the devasting impact the Applicant’s offending had on the victims.[32] One victim described feeling ‘very anxious’ and ‘broken.’[33] She stopped going to school and her family had to move house.[34] The sentencing judge noted the Applicant’s offending had had a ‘profound and adverse effect’ on this victim.[35] Another victim moved interstate to commence her recovery. The sentencing judge noted that the offending against that victim ‘has had an immense impact’ on the victim.[36]
[32] Ibid 68.
[33] Ibid 68.
[34] Ibid 68.
[35] Ibid 68.
[36] Ibid.
The Tribunal considers the Applicant’s offending conduct should be viewed as ‘very serious’ in the context of paragraph 8.1.1(1)(a) of the Direction. They were crimes of a sexual nature committed against children, and in one case involved violence.
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction and has noted that these crimes are viewed very seriously by the Australian Government and the Australian community.
The Tribunal has also had regard to the impact of the Applicant’s offending on the victims and their family, as described by the sentencing judge and outlined above (paragraph 8.1.1(1)(d)).
The totality of the Applicant’s offending has been frequent (having been sentenced on five separate occasions over a two-and-a-half-year period from December 2020 to June 2023). There is clearly an increasing trend of seriousness, having first being sentenced to theft and deception charges, to serious sexual offending (paragraph 8.1.1(1)(e)).
The Tribunal has had regard to the cumulative effect of the Applicant’s repeated offending (paragraph 8.1.1(1)(f)). Not only was the Applicant’s most serious offending protracted (occurring over a period of 12 months), but the Applicant also has a demonstrated history of breaching bail conditions and a prior court order as evidenced by his criminal history.[37]
[37] Ibid 51-2.
Therefore, the Tribunal considers the Applicant’s offending conduct to be very serious and has regard to the factors identified at paragraph 8.1.1 of the Direction.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers 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:
i. information and evidence on the risk of the non-citizen reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal has had regard to paragraph 8.1.2(1) of the Direction, which states that decision-makers 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. The Tribunal is of the view that if the Applicant were to repeat his offending, the harm that would be caused is so serious that any risk it may be repeated is unacceptable.
Nature of the harm
The Respondent submits that the nature of the harm that would be caused to the Australian community if the Applicant were to reoffend is ‘very serious and may have wide-reaching effects on the community.’[38] In support of this contention, the Respondent has relied upon on a report published by the Australian Institute of Health and Welfare which noted the serious and long-lasting impact family, domestic and sexual violence can have on victims.[39]
[38] Ibid 464 [31].
[39] Ibid 464-5 [32] referring to the Australian Institute of Health and Welfare publication Family, domestic and sexual violence in Australia: continuing the national story 2019 (release date 5 June 2019) <>
The Tribunal has had regard to the extract of the report as set out in the Respondent’s submissions in assessing the nature of the harm to individuals or the Australian community should the non-citizen engage in similar further criminal or other serious conduct (paragraph 8.1.2(2)(a)).
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal is to have regard to information and evidence of the risk of re-offending and evidence of rehabilitation achieved by the time of its decision (paragraph 8.1.2(b)). These considerations have been addressed below.
Information and evidence on the risk of the Applicant reoffending
The Applicant submits that by virtue of his rehabilitation, remorse, young age at the time of offending, and his ongoing commitment to mental health and growth as a person, he does not pose an ongoing risk to the Australian community.[40]
[40] Ibid 392 [68].
The Applicant relies upon the various courses and programs he has completed whilst in prison, including the recently completed ‘Better Life Program’.[41] Other courses the Applicant has completed include:[42]
·Various Certificates in education and vocational programs;
·Drug Treatment Program;
·Changing Gears Program; and
·Cannabis and Me Program.
[41] Ibid 395 [82].
[42] Ibid 414 [52].
The Applicant has also gained employment while in prison, for example, working in the kitchen and in the metal fabrication team.[43] The Applicant gave evidence that he has been assessed as a ‘low risk prisoner’, which has allowed him to live in an independent cottage with other prisoners, although he recently returned to a cell by choice for more privacy.[44]
[43] Ibid 415 [55]-[56].
[44] Ibid 415 [57].
The Respondent submits that any risk of further offending by the Applicant is unacceptable for the following reasons:[45]
(a)The Applicant has been subject to risk assessments in the past.[46] Those risk assessments include one undertaken by forensic psychologist Ms Carla Ferrari for the purposes of the plea hearing dated 16 July 2021, and a report prepared by Corrections Victoria dated 19 June 2023.[47] Ms Ferrari deemed that, ‘without any formal intervention (the Applicant) is considered to be at a moderate to high risk of future sexual offending according to the SVR-20’.[48] The Corrections Victoria report assessed the Applicant as having a ‘well above average’ risk under the psychometric assessments administered for the purposes of that report (being the STABLE-2002, and Static-99R).[49] The Respondent submits that this is unacceptable.
(b)The Applicant appears to lack insight into his offending conduct.[50] The Respondent relies upon his views expressed to Ms Ferrari in which he continued to believe his victims were 18 years old. The Applicant then attempted to minimise his offending by rhetorically asking what he should have done, such as checking their identification, for example.[51]
(c)The Applicant’s expressions of remorse appear to be for the purpose of obtaining a favourable outcome in these proceedings.[52] For example, in the past the Applicant has expressed that he would only engage in rehabilitative programs for the purpose of obtaining parole and to challenge his deportation status.[53]
(d)The Applicant appears to have a poor understanding of personal relationships and relationship dynamics.[54] Ms Ferrari recommended that the Applicant engage in treatment and rehabilitation which focuses on attachment, intimacy, relationships and beliefs about sex.[55]
(e)Notwithstanding the Applicant’s plea of guilty and his expressions of remorse, the Applicant has a history of disregarding bail conditions, and also initially denied his offending to police.[56] The Respondent noted that the Applicant also had the support of psychologists and support workers in the past but continued to offend.[57]
(f)The Applicant has had a number of adverse incident reports in prison.[58]
(g)Whilst the Applicant has support in the community, including from his family, these protective factors existed in the past during the Applicant’s period of offending. Further, members of the Applicant’s family appear to demonstrate limited awareness of the circumstances of his offending.[59]
[45] Ibid 465 [33].
[46] Ibid 465 [33a].
[47] Ibid 186-198 and 495-515.
[48] Ibid 195 [91].
[49] Ibid 515.
[50] Ibid 465 [33b].
[51] Ibid 190 [56].
[52] Ibid 465-6 [33c].
[53] Ibid 496.
[54] Ibid 466 [33d].
[55] Ibid 197 [102].
[56] Ibid 466 [33e].
[57] Ibid.
[58] Ibid 466 [33f].
[59] Ibid 466 [33g].
The Applicant was cross-examined regarding the various incidents that were reported against him whilst in prison. Those reports include abusing staff, spitting at a fellow prisoner, and secreting a ‘metal strip’ in his cell (which the Applicant denied during cross-examination).[60] The Applicant failed to take responsibility for these incidents, attributing blame to other prisoners and staff, and did not demonstrate remorse. These incidents, albeit relatively minor, demonstrate an inability to adhere to the rules of the prison environment. This leads the Tribunal to conclude that the Applicant is still at risk of reoffending,
Conclusion on primary consideration 1
[60] Ibid 82, 85, 89, 103.
The Tribunal has carefully weighed the above information and evidence on the Applicant’s risk of re-offending and evidence of rehabilitation. The Tribunal considers that the Applicant is at risk of re-offending as evidenced by the report of Ms Ferrari and Corrections Victoria. In the Tribunal’s view, the nature of the harm to individuals or the Australian community should the Applicant re-offend is so grave that any risk is unacceptable. The Tribunal notes that the Applicant has taken positive steps in prison towards his rehabilitation, however the Applicant’s rehabilitative efforts have not been tested in the community. The Applicant demonstrated in the past that he has poor compliance with a court order and bail conditions. The Tribunal has concluded that the nature and seriousness of the Applicant’s conduct is ‘very serious’.
The Tribunal finds that this primary consideration weighs strongly against revocation of the mandatory cancellation decision. The Tribunal has given this primary consideration more weight than other primary considerations (in accordance with paragraph 7(2) of the Direction).
Primary consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
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 noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The Applicant has not been convicted, found guilty or had charges proven for an offence that involve family violence (paragraph 8.2(2)(a) of the Direction). However, there is information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence (paragraph 8.2(2)(b) of the Direction).
In this case, the Applicant has been the subject of a Family Violence Intervention Order protecting his father.[61] A Victoria Police Event Report states that the Applicant was subject to a Family Violence Interim Intervention Order that was put in place from 29 July 2020 to 31 December 2030.[62] The Order was served on the Applicant on 1 August 2020.[63] The Corrections Victoria report dated 19 June 2023 also states that the Applicant ‘has had several Interim Family Violence Orders in place against him, where his father was the Affected Family Member’.[64] The Applicant reported to the author of that report that his father sought to have these orders removed the day after they were placed by attending the local police station.[65] The Applicant was cross-examined at length on this incident. He stated that he and his father were yelling about the Applicant’s choice of friends and activities. The Applicant’s father gave evidence of the police attending the family home while he was arguing with the Applicant and that the police put an intervention order in place.[66] The Applicant’s father stated it was the neighbours who called police. According to his written evidence and oral evidence to the Tribunal, the Applicant’s father attended the police station the next day and requested the intervention order be removed.[67]
[61] Ibid 477-8.
[62] Ibid 477.
[63] Ibid.
[64] Ibid 501.
[65] Ibid.
[66] Ibid 421 [13].
[67] Ibid 422 [14].
The Applicant initially contended that this primary consideration is not relevant to the Tribunal’s consideration.[68] However, in his written Reply, the Applicant states that the family violence incident ‘is not, in context, serious nor indicative of a serious risk to the Australian community’.[69] The Respondent acknowledges that, while the evidence before the Tribunal is limited, this primary consideration does weigh against the Applicant.[70]
Conclusion on primary consideration 2
[68] Ibid 397 [89].
[69] Ibid 523 [8].
[70] Ibid 467 [37].
The Tribunal has considered the evidence and the matters raised at paragraph 8.2 of the Direction. The Tribunal accepts the Respondent’s contention, and agrees, that while the evidence before the Tribunal is limited, this primary consideration does weigh against the Applicant. The Tribunal has had regard to the factors raised at paragraph 8.2(3) of the Direction, and notes (based on the limited material) that it does not appear that the family violence perpetrated by the Applicant is frequent or increasing in seriousness. The Applicant has accepted responsibility for his actions in his statement and has undertaken many rehabilitative courses in prison to address his behaviour.
The Tribunal finds that to the extent this primary consideration is relevant to its consideration, it is given moderate weight against the Applicant in the balancing exercise. Although it weighs against the Applicant, the Tribunal has afforded it less weight than primary considerations 1 and 5, which weigh strongly against revocation of the mandatory cancellation decision.
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen 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 non-citizen has spent contributing positively to the Australian community.
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.
This primary consideration requires decision-makers to consider any impact of the decision on the non-citizen’s family in Australia. The Applicant’s immediate family resides in Australia, including his parents and siblings, and are all Australian citizens.[71] The Applicant submits he has a strong relationship with his parents and siblings considering the many hardships they had to face prior to their arrival in Australia.[72]
[71] Ibid 397 [91].
[72] Ibid [90].
The Applicant has previously worked for his older brother, and the Applicant describes him as ‘one of his best friends’.[73] The Applicant’s younger brother also gave evidence in support of the Applicant and described the close bond they have.
[73] Ibid [91].
In terms of other ties, the Applicant called evidence from a family friend who described the Applicant and his family as good people who are always kind and caring to everyone in the community.[74]
[74] Ibid 455 [3].
The Applicant also provided a letter in support from a Senior Prison Chaplain who stated the Applicant is ‘doing well’ in his behaviour with other inmates and is making a strong effort in learning.[75] The Applicant reports ‘reconnecting with my faith has assisted with my rehabilitation.’[76]
[75] Ibid 525.
[76] Ibid 413 [48].
The Respondent also notes that the Applicant moved permanently to Australia as a 15-year-old and undertook high school in Australia to Year 10, before undertaking a TAFE course, apprenticeship and paid employment.[77] The Respondent notes these are matters which weigh in the Applicant’s favour.[78] The Respondent also acknowledges the Applicant’s other ties to Australia, including social links, sporting links, and volunteering at various churches.[79]
[77] Ibid 467-7 [40].
[78] Ibid.
[79] Ibid 468 [41].
The Respondent acknowledges that this primary consideration weighs in the Applicant’s favour, but that it is not outweighed by primary considerations 1, 2 and 5.[80]
Conclusion on primary consideration 3
[80] Ibid [42].
The Tribunal makes a finding that this primary consideration weighs in the Applicant’s favour. Given the Applicant’s strong ties to his immediate family, who are all Australian citizens, the Tribunal gives this primary consideration significant weight. The Tribunal has also considered the strength, nature and duration of the Applicant’s other ties to Australia. The Tribunal notes that the Applicant began offending five years after his arrival into Australia. Prior to his offending, the Applicant contributed positively to the Australian community through his schooling and employment. The Tribunal has attributed more weight to this factor. Overall, the Tribunal gives this primary consideration significant weight in the Applicant’s favour but makes a finding that it does not outweigh the primary considerations against revocation of the mandatory cancellation decision.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two minor siblings (RS and LS) and one minor nephew in Australia.[81] The two minor siblings are 15 and eight years of age respectively.[82] The Applicant submits he has a ‘very close relationship’ with his younger siblings, both of whom, it is submitted, have been adversely affected by the cancellation decision.[83]
[81] Ibid 384 [8].
[82] Ibid.
[83] Ibid 398 [95], 417 [49], [68].
The Applicant has stated that he has a close relationship with RS.[84] RS gave written and oral evidence to the Tribunal that she and her brother are extremely close and that she is closer to the Applicant than her own father.[85] She stated that the Applicant helped raise her and he has always been supportive of her.[86]
[84] Ibid 417 [68].
[85] Ibid 432 [3].
[86] Ibid 432 [4].
The Applicant’s younger sibling LS is eight years of age. The Applicant notes the close bond between himself and LS and explained that permission had to be sought for both RS and LS to visit the Applicant in prison with their parents.[87]
[87] Ibid 398 [97].
The Applicant’s nephew is an Australian citizen.[88] The Applicant’s half-sister gave evidence to the Tribunal in regard to the close bond between her son (the Applicant’s nephew) and the Applicant. She also stated that her son has a disability, and that the Applicant has provided assistance to her in caring for her son.
[88] Ibid.
The Applicant submits that this primary consideration weighs heavily in favour of revoking the mandatory cancellation of his visa.[89]
[89] Ibid 398 [98].
The Respondent also accepts that this primary consideration weighs in the Applicant’s favour.[90] However, the Respondent contends that this consideration ought to be given limited weight in circumstances where:
(a)The relationship between the Applicant and his minor siblings is non-parental (paragraph 8.4(a) and (e) of the Direction);
(b)The extent to which the Applicant will play a positive role in RS’s life is limited by the fact that RS will soon turn 18 (paragraph 8.4(4)(b) of the Direction); and
(c)If the Tribunal affirms the decision, the Applicant can still play a positive role in his minor siblings’ life by electronic means (paragraph 8.4(4)(d) of the Direction).
[90] Ibid 468 [44].
The Tribunal has considered the matters raised at paragraph 8.4 of the Direction. The Tribunal has applied these considerations to the Applicant’s two minor siblings and minor nephew as persons in Australia affected by the decision. Pursuant to paragraph 8.4(3) of the Direction, the Tribunal has given individual consideration to the factors at paragraph 8.4(4) where relevant.
In relation to the Applicant’s minor sibling (RS), the Tribunal notes the following:
(a)It is accepted that the relationship between the Applicant and RS is close. The Tribunal notes, however, that the relationship is non-parental. It is also noted that RS was 11 years of age at the time her brother was arrested and remanded into custody for the primary offences. The Tribunal has also had regard to the fact that he will be registered as a sex offender and according to the relevant legislation he will be prohibited from living with RS and LS upon his release from prison if he is released into the community.[91] He would not be prohibited from having contact with RS, but if the Applicant were to return to the family home (and the evidence was that is what is planned), arrangements have already been put in place for both RS and LS to live with their older half-sister LM. The Tribunal is of the view that less weight should be attributed to this factor because the relationship between the Applicant and RS is non-parental, there have been long periods of absence, and there is the presence of mandated separate living arrangements, which would affect the nature of the contact between the Applicant and RS (paragraph 8.4(4)(a)).
(b)RS will turn 18 years of age in three years. Therefore, the extent to which the Applicant is likely to play a positive role in the future is somewhat limited given the length of the Applicant’s prison sentence (paragraph 8.4(4(b)).
(c)The Tribunal has considered the impact of the Applicant’s conduct on RS, and notes that it resulted in the separation of the Applicant from his family from the moment of his arrest in February 2021.[92] Further, the nature of the Applicant’s crimes means that he is prohibited from residing with RS and LS in the future (paragraph 8.4(4)(c)).
(d)The Tribunal has considered that separation from the Applicant would have a negative impact on RS as evidenced from her statement (paragraph 8.4(4)(d)).[93]
(e)RS’s parents already fulfil a parental role in her life, as do her other older siblings (paragraph 8.4(4)(e)). This factor is therefore given less weight.
(f)RS gave written and oral evidence to the Tribunal. The Tribunal acknowledges RS’s evidence that she is worried her mental health will deteriorate if the Applicant were not able to remain in Australia with her family (paragraph 8.4(f))..[94]
(g)There is no evidence that RS has been subject to or exposed to family violence perpetrated by the Applicant, nor any evidence that she has suffered any physical or emotional trauma arising from the Applicant’s conduct (paragraphs 8.4(4)(g) and (h)). It is accepted, however, that the Applicant’s incarceration did have a negative impact on RS and that this negative impact is continuing as a result of their current separation.
[91] Sex Offenders Registration Act 2004 (Vic), s 66Q.
[92] Exhibit R1, 68 [40].
[93] Ibid 432.
[94] Ibid 432 [9].
The Tribunal finds that RS would be adversely affected by the decision. Accordingly, a non-revocation decision under s 501CA would not be in RS’s best interests.
In regard to another of the Applicant’s minor siblings (LS), the Tribunal notes the following:
(a)The Tribunal accepts that the relationship between LS and the Applicant is close.[95] The Tribunal notes, however, that LS was four years of age when the Applicant was arrested and remanded into custody. The Tribunal also notes that the relationship between LS and the Applicant is non-parental. Like RS, there are also restrictions on the Applicant’s ability to reside in the same house as LS, and as such, arrangements have been put in place for LS to reside with her older sister (and RS). The Tribunal has given less weight to this factor (paragraph 8.4(4)(a)).
(b)The Tribunal notes that LS is currently eight years of age. The Applicant is still likely to play a positive role in LS’s life until she turns 18 but the Tribunal again notes that the Applicant is unable to reside with her, and therefore the Tribunal is of the view that the positive role the Applicant can play in her life is slightly limited (paragraph 8.4(4)(b)).
(c)The Tribunal has noted the impact of the Applicant’s prior conduct, and notes that as a result of his offending he will be prohibited from residing with LS and RS in the future (paragraph 8.4(4)(c)).
(d)The Tribunal considers that separation from the Applicant would have a negative impact on LS (paragraph 8.4(4(d)).
(e)LS’s parents already fulfil a parental role in LS’s life as do her older siblings. The Tribunal has already given this factor less weight (paragraph 8.4(4)(e)).
(f)LS has not provided a statement, but her views are known through the evidence of her father who says that the Applicant has a close relationship with his siblings (paragraph 8.4(4)(f)).[96]
(g)Again, there is no evidence that LS has been subject to or exposed to family violence perpetrated by the Applicant, nor suffered any physical or emotional trauma arising from the Applicant’s conduct (paragraphs 8.4(4)(g) and (h)). The Tribunal does accept that the Applicant’s incarceration would have had a negative impact on LS and that this impact is continuing as a result of their current separation.
[95] Ibid 416 [66].
[96] Ibid 422 [20].
The Tribunal finds that LS would be adversely affected by the decision and that a non-revocation decision would not be in LS’s best interests.
The Tribunal has also had consideration to the best interests of the Applicant’s nephew. The Tribunal notes that the relationship between the Applicant and the nephew is non-parental but accepts that the Applicant does have a close relationship with him (paragraph 8.4(4)(a)).[97] The Tribunal notes that the Applicant’s nephew would have been three years of age at the time the Applicant was arrested. The Tribunal has afforded this factor less weight in light of the nature of the relationship and the length of absence by the Applicant from his nephew. The Tribunal notes that the nephew is currently seven years of age and that the Applicant is likely to play a positive role in the child’s future (paragraph 8.4(4)(b).[98]
[97] Ibid 453 [5].
[98] Ibid 453 [5].
The Tribunal has considered the impact of the Applicant’s conduct on his nephew and the impact that the separation has had on him (paragraphs 8.4(4)(c) and (d)). The Tribunal notes that the child’s mother gave evidence and that she, as well as the Applicant’s parents, already fulfil a parental role in the child’s life (paragraph 8.4(4)(e)). During LS’s evidence, she told the Tribunal that her son (the Applicant’s nephew) has a disability and is also receiving support from the NDIA, which also provides assistance to her and her son.
LS gave evidence of a loving relationship between her son and the Applicant (paragraph 8.4(4)(f)).[99] There is no evidence that the Applicant’s nephew has been affected by any of the factors raised in paragraphs 8.4(4)(g) and (h) of the Directions.
[99] Ibid 453 [5].
The Tribunal therefore finds that the Applicant’s nephew would be adversely affected by a non-revocation decision and that a non-revocation decision would not be in his best interests.
Conclusion on primary consideration 4
The Tribunal makes a finding that primary consideration 4 weighs in the Applicant’s favour. The weight to be attributed to this primary consideration is moderate given the non-parental role the Applicant plays in the lives of the minor children, and the fact that he would be prohibited from residing with his minor siblings in the future. The Tribunal finds that, on balance, this primary consideration weighs in favour of revoking the mandatory cancellation decision but does not outweigh primary considerations against revocation.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction provides:
(1) 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.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant submits that his offending ‘is not so grave’ that the Australian community would expect he be removed from the country.[100] The Applicant submits he is remorseful and wholly committed to his rehabilitation.[101] The Applicant further submits that the Australian community would not consider cancellation of his visa as appropriate ‘simply because of the type of offending and therefore this consideration weighs in favour of the visa cancellation being revoked.’[102]
[100] Ibid 398 [99].
[101] Ibid.
[102] Ibid 399 [101].
The Respondent submits that in observing the norm stipulated in paragraph 8.5(1) of the Direction, and the principles set out in paragraph 5.2, the Australian community would expect that the Applicant should not hold a visa ‘on account of the serious and sexual offending he was committed against female minors, noting the principle that the safety of the Australian community is the highest priority of the Australian Government.’[103]
[103] Ibid 470 [50].
The Respondent relies upon the principles in FYBR v Minister for Home Affairs (‘FYBR’) and Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (‘Ismail’), which state that the decision maker is to proceed on the basis of the Australian Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.[104] The Respondent submits that the question for the decision-maker is the weight to be attached to this consideration.[105] In the Respondent’s view, this primary consideration weighs very heavily against revocation.[106]
Conclusion on primary consideration 5
[104] Ibid 469-70 [48]-[49] citing Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [51]-[52] and FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) [66] (Charlesworth J), [91] (Stewart J).
[105] Ibid 470 [49].
[106] Ibid 470 [51].
The Tribunal has considered the expectations of the Australian community as set out in paragraph 8.5 of the Direction. The Tribunal considers that the Applicant has engaged in serious conduct in breach of the expectation to obey Australian laws. The Applicant committed serious crimes against children, being crimes of a sexual and violent nature. The nature of the Applicant’s offences is such that the Australian community would expect that the Applicant should not continue to hold a visa.
The Tribunal has already found that the Applicant is at risk of re-offending. Although the Applicant has taken steps towards his rehabilitation, the Tribunal finds that the nature of the Applicant’s offending is so serious, the Australian community would expect such a person not be allowed to remain in Australia. The Tribunal has had regard to not only the Applicant’s main offending, but also his prior offences, and his disregard for a previous court order and bail conditions. The Tribunal finds that this primary consideration weighs strongly against revocation of the mandatory cancellation decision. The Tribunal has had regard to the relevant authorities and has attributed significant weight to this consideration given the nature of the crimes the Applicant committed over a protracted period of time.[107]
[107] FYBR [103], Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [64] (Robertson J).
Other consideration 1: Legal consequences of decision under s 501 or s 501CA
Paragraph 9.1(1) of the Direction provides:
(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 non-citizen.
This other consideration sets out different considerations for non-citizens who are covered by a protection finding, and non-citizens not covered by a protection finding. In this case, the Applicant is not covered by a protection finding, so paragraph 9.1.2 of the Direction is relevant.
The Applicant submits that the Applicant cannot return to Iraq because he fears that his Sunni faith, his parent’s interfaith marriage and the fact he has spent time abroad in a Western country ‘would place him at risk from extremist groups who are opposed to the West and Western Ideology.’[108] The Applicant also submits that he would not have support from his immediate family members in Iraq, and given his unfamiliarity with a country he fled over 10 years ago, he would be at risk of exploitation and serious harm.[109]
[108] Exhibit R1, 399 [103].
[109] Ibid [104].
The Applicant also relies upon the prospect of his indefinite or arbitrary detention in Australia if his visa cancelation is not revoked but he is not returned to Iraq.[110] The Applicant has relied upon the findings contained in the Annual Report of the Commonwealth National Preventive Mechanism under the Optional Protocol to the Convention Against Torture, which provided 18 recommendations to the Department on detention conditions, including improved medical and wellbeing services and food provisions.[111]
[110] Ibid 400 [105].
[111] Ibid 400 [106] citing Commonwealth Ombudsman, Monitoring Commonwealth Places of Detention – Annual Report of the Commonwealth National Preventative Mechanism under the Optional Protocol to the Convention Against Torture (January 2023): <>
The Applicant also relies upon Australia’s obligations under the International Covenant on Civil and Political Rights because of the ‘strong probability of seriously compromising the Applicant’s mental health if he faces detention without any certain limit, and possibly far removed from his family.’[112]
[112] Ibid 400 [105], International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
The Respondent submits that it is open to the Applicant to make an application for a protection visa, noting that the Applicant would not be liable for removal whilst a valid protection visa application was being determined (paragraph 9.1.2(3) of the Direction).[113]
[113] Ibid 471 [54].
In closing submissions, the Respondent relied upon the High Court’s findings in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (‘NZYQ’), which has specifically addressed the question of indefinite detention in Australia.[114]
[114] [2023] HCA 37.
Further, the Respondent also relies upon the principles laid out by the High Court in Plaintiff M1 v Minister for Home Affairs (‘Plaintiff M1’) in which the majority held that, in deciding whether there was another reason to revoke the mandatory cancellation of an applicant’s visa where it was open for the applicant to apply for a protection visa:[115]
(a)the delegate was required to read, identify, understand and evaluate the representations that raised a potential breach of Australia’s international non-refoulement obligations;
(b)Australia’s international non-refoulement obligations unenacted were not a mandatory relevant consideration; and
(c)to the extent that non-refoulment obligations are given effect in the Act, it is open to the delegate to defer assessment of whether an applicant was owed those obligations on the basis that it is open to an applicant to apply for a protection visa under the Act.
[115] Exhibit R1, 471 [55] citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 [9].
The Respondent therefore submits that the Tribunal is entitled to defer assessment of whether the Applicant is owed non-refoulement obligations on the basis that it is open to him to apply for a protection visa.[116]
[116] Ibid 471-2 [56].
The Respondent contends that to the extent that the Tribunal finds that this consideration weighs in the Applicant’s favour, it does not outweigh the combined weight of the primary considerations weighing against revocation.[117]
[117] Ibid 472 [58].
The Tribunal has acknowledged that the Applicant has raised non-refoulement obligations for the Tribunal’s consideration. The Tribunal considers however that, on the basis of the High Court’s reasoning in Plaintiff M1, it is appropriate to defer consideration of the non-refoulement obligations that are potentially engaged on the basis that it is open to the Applicant to make an application for a protection visa. The Tribunal has nonetheless taken account of the facts of which it is submitted give rise to non-refoulement obligations. The Tribunal has taken into account the risk of harm that the Applicant submits he would be subject to if returned to Iraq. The Tribunal has afforded this factor considerable weight in favour of revoking the mandatory cancellation of the Applicant’s visa.
The Tribunal further notes that paragraph 9.1.2(3) of the Direction provides that ‘[a] refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists.’[118] Further, if the Applicant were to make a valid application for a protection visa, he would not be liable for removal while the application is being determined.[119]
[118] Direction 9.1.2(3).
[119] Direction 9.1.2(3), s 197C of the Act.
The Tribunal has considered the other claims made by the Applicant in relation to the prospect of his indefinite detention and notes the findings of the High Court in NZYQ.
The Tribunal considers that this other consideration as a whole does weigh in the Applicant’s favour. However, the Tribunal has also considered paragraph 7(2) of the Direction, which provides that primary considerations should generally be given greater weight than the other considerations. The Tribunal has given greater weight to the primary considerations in this case, and has determined that, to the extent that this other consideration weighs in the Applicant’s favour, it is not outweighed by the primary considerations that weigh against revocation of the mandatory cancellation decision.
Other consideration 2: Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant submits that he fears harm if he were returned to Iraq.[120] He submits it is unlikely that he would be able to access the mental health treatment he requires, and given the unstable economic, political and religious situation in Iraq, the availability of any social, medical or economic support is low or non-existent.[121] The Applicant submits that he has no family support in Iraq as his extended family have been forced to flee the country.[122]
[120] Exhibit R1, 401 [107].
[121] Ibid.
[122] Ibid, 401 [108].
The Respondent accepts that the Applicant would lack support from immediate family members in Iraq.[123] The Respondent also notes, however, that the Applicant is of a relatively young age and does not have any significant health problems beyond post-traumatic stress disorder and anxiety.[124] The Respondent notes that the Applicant has some familiarity with the culture and language as he lived in Iraq, Syria and Turkey until the age of 15.[125] The Respondent accepts that this consideration weighs in the Applicant’s favour but does not outweigh the primary considerations weighing against revocation of the mandatory cancellation decision.[126]
[123] Ibid 473 [62].
[124] Ibid 473-4 [60].
[125] Ibid 473 [61].
[126] Ibid 473 [63].
The Tribunal has considered the matters raised above against paragraph 9.2 of the Direction. The Tribunal notes that the Applicant is currently 24 years of age, in relatively good health, and would not have any substantial language or cultural barriers if he were to return to Iraq.
The Tribunal does accept that the Applicant would face some impediments in establishing himself in Iraq given the lack of immediate family support and economic support. The Tribunal accepts that this other consideration weighs in the Applicant’s favour but is not outweighed by the primary considerations that weigh against revocation of the mandatory cancellation decision.
Other consideration 3: Impact on Australian business interests
Paragraph 9.3 of the Direction provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This other consideration has not been relied upon by either party and the Tribunal has deemed it as not relevant to the circumstances of this case. This other consideration has been given neutral weight.
CONCLUSION
The Tribunal has concluded that the Applicant does not pass the character test. The remaining issue to be determined by the Tribunal is whether there is ‘another reason’ why the mandatory cancellation decision should be revoked. The Tribunal has applied the Direction to the specific circumstances of the Applicant’s case.
The Applicant has a lengthy criminal history, including for serious sexual offences against young victims. The Applicant was sentenced to a total effective sentence of five years, three months’ imprisonment for these offences. The Applicant’s visa was mandatorily cancelled soon after.
The Tribunal has weighed all the relevant considerations individually and cumulatively. The Tribunal has determined that primary considerations 1, 2 and 5 weigh against the Applicant, with primary consideration 1 being given greater weight than the other primary considerations. Primary considerations 3 and 4 and the relevant other considerations are in the Applicant’s favour but are not outweighed by the primary considerations that weigh against revocation. The combined weight of primary considerations 1, 2 and 5 weigh against revoking the mandatory cancellation decision.
The Tribunal has therefore determined that there isn’t another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton
...............[SGD]...............
Associate
Dated: 11 February 2025
Dates of hearing: 3 and 4 February 2025 Counsel for the Applicant: Mr Anthony Krohn Solicitors for the Applicant: AUM Lawyers Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore Lawyers
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