BQHJ and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 71

BQHJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 71 (5 February 2025)
Applicant/s:  BQHJ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9733

Tribunal:Deputy President Britten-Jones
Place:Brisbane
Date:5 February 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides to not exercise the discretion under s 501(1) to refuse the grant of a Protection visa.

....................[SGD]....................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – refusal of a Protection (Class XA) visa under
s 501(1) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test – whether the discretion under s 501(1) of the Act to refuse to grant the Protection visa should be exercised – decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
BQHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3734
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 276 CLR 136
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 475
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

BQHJ (the Applicant) seeks a review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) to refuse to grant, pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act),[1] a Protection (Class XA) visa (the Protection visa).
[1] All references to legislation are to the Migration Act 1958 unless otherwise stated (‘the Act’).
The Applicant applied for the Protection visa on 15 May 2023 and was refused on 18 November 2024. The Applicant seeks to set aside that refusal decision.
This application for review follows an earlier unsuccessful application to the Tribunal to set aside a decision to not revoke the mandatory cancellation of the Applicant’s Class XB Subclass 204 – Woman at Risk visa under s 501(3A).[2]
[2] See BQHJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3734 dated 23 September 2020.
There have been numerous developments since the earlier decision of the Tribunal:
(a)The High Court handed down judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs,[3] which held that immigration detention under ss 189 and 196 of the Act for the purposes of removal under s 198 of the Act was not constitutionally permissible where there was no realistic prospect of the non-citizen’s removal from Australia becoming practicable in the reasonably foreseeable future;
(b)the Applicant was granted a Class WR Bridging R (Subclass 070) visa (BVR) on 18 November 2024 and was released into the community;
(c)the Minister made a new Ministerial Direction (Direction 110).[4] The new Direction puts a stronger emphasis on the protection of the Australian community, which is now essentially paramount: it is “generally to be given greater weight than other primary considerations”;[5] and
(d)the High Court’s decisions in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs[6] have the effect that the Tribunal cannot rely upon any “non-conviction” dispositions recorded in the Applicant’s criminal record.
[3] (2023) 97 ALJR 1005.
[4] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’).
[5] Ibid 7(2).
[6] (2023) 276 CLR 136; (2024) 98 ALJR 475.
Background Facts
The Applicant was born in Pakistan in 2000 after his Afghani parents fled the Taliban in Afghanistan. He has never entered or resided in Afghanistan, but he is an Afghani citizen. His childhood in Pakistan was traumatic. When the Applicant was 10 years old, his father died from a suspected Taliban bomb blast in Afghanistan. Instead of going to school in Pakistan, the Applicant began working at around 11 years of age as a welder. He was exposed to violence between Sunni and Shia Muslims. He was abducted at gunpoint by two men on a motorcycle, taken to a field and raped by one while the other held him down. Until recently, he did not disclose the sexual assault to his family due to feelings of shame and fear.
In or around 2012, the United Nations High Commissioner for Refugees accepted the Applicant’s mother and aunt’s fear of persecution in Afghanistan was well founded and recognised the family’s refugee status under the 1951 Convention on the Status of Refugees.[7] On 23 December 2012, the Applicant and his younger brother, mother and aunt were granted visas and they arrived in Australia on 28 February 2013 when the Applicant was 13 years old.
[7] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
The family settled in Brisbane and the Applicant attended high school taking English classes for about three years. From the age of 13 or 14 years old, the Applicant began smoking marijuana and associating with a group of older male peers who were also of Afghan heritage. On 17 March 2015, the Applicant committed a sexual offence against an adult woman. He was 15 years old and he stopped going to school at that time. He was arrested for rape and was subject to a bail order from about April 2015 to 7 December 2018. In December 2017, the Applicant pleaded not guilty to the rape charges. He was found guilty at trial and was later sentenced on 7 December 2018 to a two year detention period.[8] After 12 months he was released from prison and entered immigration detention until November 2024 when he was released into the community on a bridging visa (BVR).
[8] G-Documents, G3.
In early 2017, the Applicant commenced a relationship with a woman who he married in September 2017. Their daughter was born on 1 April 2018. They lived together with the Applicant’s mother and younger brother. In January 2021, when the Applicant was still in detention, they ended their relationship. He does not know where his ex-wife and daughter live and he has had limited contact with them since the relationship ended.
Evidence
The Applicant provided witness statements and oral evidence to the Tribunal. He cannot read or write in English but he speaks well. An interpreter in the Dari language was available and occasionally assisted him during the hearing, but otherwise he chose to give his evidence in English. The opening address by the respondent was fully interpreted because the Applicant said that he was unable to read the Respondent’s amended statement of facts issues and contention dated 22 January 2025. Oral evidence was also given through the interpreter by his mother, her partner and his aunt. The Applicant’s younger brother, who is now 15 years old, provided a witness statement. The Applicant’s wife gave a written statement dated 13 January 2020 at which time she supported the applicant and his release from detention. There are numerous other witness statements from family and community members in support of the Applicant.[9]
[9] Ibid G13.
At the beginning of the hearing the Applicant applied for an adjournment because he wanted time to make further enquiries about obtaining legal representation and providing further statements to the Tribunal. I explained that the directions made by the Tribunal on 3 December 2024 imposed a timetable for the provision of evidence taking into account the 84-day rule which has the effect of requiring a decision to be made by the Tribunal on or before 10 February 2025. It was unlikely that the Applicant could arrange legal representation within that timeframe. I offered a very short adjournment but the Applicant decided to proceed with the hearing. The adjournment was not granted on that basis.
The Rape Conviction
The Applicant initially denied any involvement in the offences and pleaded not guilty. He and his co-accused were found guilty by a jury on 1 December 2017. The Applicant unsuccessfully appealed those convictions. On 7 December 2018, he was sentenced to two years of detention as a juvenile because he was 15 years old when he committed the offences.[10] The Judge’s sentencing remarks included the following description of the offending:[11]
[10] Ibid G3.
[11] Ibid G6, 66-7.
The complainant was 26 years old. She had been out, in effect, at a club or a bar with a friend and had had a considerable amount to drink. In cross-examination, she accepted she was pretty drunk by the time she left the last place to walk towards her brother’s home at Logan.
She spoke to one man who was joined by two others. That was you two and a third person,… . There was some CCTV footage that showed that meeting. The effect of it was that there was some discussion, some conversation, and the complainant got in a car with the three of you. … was the driver. You [Applicant] were in the back seat and so you … , were in the front passenger’s seat.
The complainant said, when it was clear that you were not taking her home, she wanted to get out. Her evidence was that her requests to get out were ignored and the car just kept moving and the three of you continued to speak in a language she did not understand…
… drove the car to an isolated place and only you … stayed in the car; the other two got out. You [Applicant] stayed in the car. The complainant…described the car being driven down a dirt road to a dark bush area. She said that she wanted to go home.
You [Applicant] then raped her in the back seat. She described your moving her legs onto the seat. You took her shorts off and lay on top of her. She then said again, in her evidence, that at that time she said she wanted “to go the fuck home”, but you had sex with her. She did not know if you were wearing a condom or if you ejaculated. The other two were outside but the back passenger door was open, and it was after that that you got out of the car. A second man - and that was you, … - got into the car and got on top of her and put your penis in her vagina. And her evidence was that, again, she told you more than once:
I want to go the fuck home.
… After that, the driver of the car told her to put her clothes on and, in effect, said “That’s enough” and told the complainant that she was safe then. She was dropped at the front of her brother’s unit and she complained immediately and the police were called.
So you are both to be sentenced for an offence that you personally committed and the offence of the other on the grounds, at least, that by your presence, you encouraged and aided…. It is difficult to firmly assert that it was always the plan to rape somebody, but that is what happened once she was in your car. She was taken to an isolated spot and raped.
The complainant has not prepared a victim impact statement but her mother, … , did and read it to the Court. The purpose of the reading is primarily therapeutic. I do take into account the matters in that statement, and there is no doubt that your offences had a significant and lasting effect on the complainant. It was, however you look at it, a disgraceful and appalling joint action against someone who was vulnerable because she was out on the street late at night quite intoxicated, and your conduct is to be condemned.
In a statement dated 8 January 2020, the Applicant said:[12]
[45] On the day of this incident, I was working at … shop when two older boys I knew from school arrived and told me to come hang out with them. Their names were …. They were Afghan refugees like me and lived in Logan. I had spent time with … at school. We became friends and we helped each other with our English.
[46] We drove to the Gold Coast. We started smoking and then … began drinking. They offered some to me. I said no as I had never drunk alcohol before. … started pressuring me. He called me a “pussy”. I started drinking. I do not know what I was drinking but it was very strong and tasted awful.
[47] I quickly became drunk. It affected the way I was talking. I had problems walking and … had to help me back to the car. I threw up a couple of times on the drive back. I also passed out in the car at some point. I am very ashamed of this.
[48] When we arrived back in Logan, we saw a woman walking along the road. I do not remember how it happened but she got into the car with us. I believe she had also been drinking. I continued drinking from a white bottle that had a clear liquid in it. After this, I passed out. I do not have any memory of having sex with the woman who got into the car.
[49] The next day I woke up in my home. I saw … later that day. He told me I had sex with the woman in the car. I did not believe him because I had no memory of this happening.
[50] I was later charged by police with … for raping this woman. I plead not guilty as I did not believe this had happened.
[12] Ibid G11.
In a statement dated 16 January 2024, the Applicant said:[13]
[21] Through counselling and talking openly about my offending I have come to terms with the fact that I did rape this woman. I am devastated I did this and that I allowed myself to get so drunk and to behave so badly that I did such a horrible thing and cannot remember it. I know my actions will have impacted her life forever and I have done everything I can to make sure I am a changed person and there is no risk of something like this ever happening again.
[13] Ibid G9, 101.
At the hearing, the Applicant accepted that he raped the woman but maintained that he has no memory of it because he was so drunk.
The Legislative Framework
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)
…
(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)); …
A person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[14]
[14] The Act (n 1) s 501(7)©.
Where a visa is refused, the right to have that decision reviewed by the Tribunal is enlivened.
The Tribunal is bound by s 499(2A) of the Act to comply with Direction 110.
For the purposes of deciding whether to refuse a non-citizen’s visa, paragraph 5.2 of Direction 110 contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of Direction 110 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 measureable 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 non-citizens 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 non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in Direction 110.
The primary considerations are:[15]
(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] Direction 110 (n 4) at 8.
The other considerations are:[16]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
[16] Ibid 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[17]
CONSIDERATION
[17] Ibid 7(2)
Protection of the Australian community – 8.1 of Direction 110
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.[18] As required by paragraph 8.1(2) of Direction 110, I give consideration below 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.
[18] Ibid 8.1(1).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110

The Applicant’s criminal record is set out in a report from the Australian Criminal Intelligence Commission.[19] The three earliest entries can be disregarded because they proceeded without conviction. For the purposes of this application, the only criminal convictions relate to the rape on 7 March 2015 when the Applicant was 15 years old. As is apparent from the Judge’s sentencing remarks set out above, this was a violent and sexual crime committed against a vulnerable woman who suffered terribly at the time and with long lasting physical and mental effects. The Applicant is not in any way excused because he was allegedly drunk at the time and has no recollection of it. It was a most dreadful crime with horrific consequences for the victim who, through no fault of her own, found herself in a deserted place where she was submitted to awful sexual abuse. The custodial sentence reflects the seriousness of the crime. This type of crime is viewed most seriously by the Australian government and community. The inherent nature of rape is so serious that even strong countervailing considerations may be insufficient to justify refusing the Protection visa.
[19] G-Documents, G3.
In addition to the conviction for rape, there is other conduct which may be relevant to assessing the nature and seriousness of the Applicant’s conduct. This conduct occurred whilst the Applicant was in immigration detention.
There is evidence that the Applicant did not cope well in immigration detention which manifested itself in some poor decisions, especially after his relationship with his wife finished in January 2021 and there were difficulties communicating with his daughter. He clearly became very frustrated and engaged in inappropriate online behaviour towards his wife. This resulted in a temporary protection order made on 29 July 2021 and a domestic violence protection order being granted in September 2021.[20] A police report from 11 April 2022 suggests he breached that order. There were no charges laid and the Applicant denies many of the allegations contained within the police reports. The Applicant admits arguing and swearing because his wife would not let him speak to his daughter. He denies threatening her or sending nude pictures to her or setting up a fake TikTok account to abuse her.[21] He said that he would not have done those things to his wife when she was living at the time with his mother. Despite breaking up with the Applicant in January 2021, the Applicant’s wife and daughter remained living with his mother up until sometime in 2023. I consider that the evidence does support a finding that the Applicant engaged in domestic violence by making threatening and inappropriate comments online when he was in immigration detention, but the particulars of the behaviour are not established. I note that the allegations in the police reports are confined to a period of about 12 months from April 2021.
[20] Ibid G5.
[21] Respondent’s Tender Bundle, TB2 at 15.
The Applicant’s frustration at being held in immigration detention for so long also manifested itself in incidents which were reported by SERCO officers. There was one incident of an alleged assault on another detainee by the Applicant on 10 April 2021.[22] The Applicant denies this incident. There are other reports of assault and physical altercation by the Applicant in February and April 2023.[23] The Applicant denies the violence alleged in these reports which, in any event, does not appear to be very serious. The most recent incident report is from 26 September 2024 when the Applicant admits that he swore and smashed a sandwich press in frustration over having his ID card reactivated. Whilst this behaviour was inappropriate and shows a disregard for authority, it was in the context of a lengthy period in immigration detention and no charges were laid.
[22] Respondent’s Supplementary Tender Bundle, TB5 at 6.
[23] Ibid TB5.
I conclude as to the nature and seriousness of the Applicant’s conduct that it was very serious. Although the convictions only relate to the one incident when the applicant was a juvenile, it was a most serious criminal act against a vulnerable woman who suffered horribly. I also take into account the Applicant’s conduct which resulted in the domestic violence protection order to which I will return when considering family violence under paragraph 8.2 of Direction 110. All domestic violence, whether the subject of conviction or not, is viewed as being very serious. I place less weight on the incidents reported by SERCO officers in detention because much of the alleged conduct was either denied by the Applicant or not of a very serious nature. In summary, the nature and seriousness of the Applicant’s conduct is a significant factor against the Applicant in terms of whether I should refuse to grant the Protection visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[24] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
[24] Direction 110 (n 4) at 8.1.2(1).
(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 re-offending; 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.
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[25] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[25] (2014) 225 FCR 424.
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be very serious because of the inherent nature of rape. By committing an act of rape, the Applicant has violated an innocent woman and caused significant trauma and emotional damage. The Applicant has also engaged in family violence which is inherently harmful. If the Applicant repeated similar conduct, it would have serious consequences.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
Whilst there are no recent reports assessing the Applicant’s risk of re-offending, there are reports from 2018 to 2020 which were relied upon at the earlier Tribunal hearing and which were before the Tribunal at this hearing.
Dr Shumack, a senior clinician, forensic and clinical psychologist, of Griffith University’s “Griffith Youth Forensic Service” prepared a report to assist with sentencing dated 14 November 2018.[26] Dr Shumack administered two different risk assessment tools relevant to juvenile sex offenders. She noted that such tools cannot definitively indicate whether an individual will reoffend but can only provide a guide for assessing probable levels of risk based on the information available at the time of assessment. She said the Applicant’s results were elevated due to his ongoing denial and his limited understanding of risk factors and risk management strategies. She said given his ongoing denial[27] it remains uncertain whether he presented with deviant sexual interests or attitudes supportive of sexual offending.[28] She concluded that the Applicant was a low to moderate risk of sexual reoffending.[29]
[26] G-Documents, G17.
[27] The Applicant has since accepted that he committed the rape for which he was convicted.
[28] G-documents, G17 208 [61].
[29] Ibid [60].
Ms Marissa Piat, psychologist, provided counselling to the Applicant between May and November 2019. In a report dated 6 September 2019,[30] Ms Piat, said the Applicant had attended seven counselling sessions since 31 May 2019.[31] She said he required ongoing counselling for issues to do with his custodial environment and to manage his symptoms associated with “likely Post Traumatic Stress Disorder”.[32]
[30] Ibid G18, 214-6.
[31] Ibid 214.
[32] Ibid 216.
Ms Piat said the Applicant had engaged appropriately in intervention, “willingly exploring the factors which contributed to his offending”,[33] and that:[34]
Following completion of his offending pathway, [the Applicant] was engaged in discussions regarding the consequences of his offending. He was noted to demonstrate empathy towards the victim of his offending, calling upon his own experience of victimisation to assist in identifying possible impacts including possible self-blame and emotional distress “(it would have been) a tough time on her”. [The Applicant] was also able to demonstrate understanding of the wider consequences of his offending including the impact on his family and now wife. It is noted that within the sessions [the Applicant] has largely been able to demonstrate empathy and understanding towards others.
[The Applicant] has also been provided with psychoeducation in relation to interpersonal skills … . He is demonstrating an increased capacity to implement these …
Throughout all of his attended sessions, development of adaptive coping strategies has been intertwined within discussions. …
[33] Ibid 214.
[34] Ibid 215.
In a further report dated 11 December 2019,[35] Ms Piat said the Applicant had attended another five sessions with her which focussed on:[36]
continuing to build his capacity to appropriate regulate his emotional state; developing increased understanding regarding healthy relationships and building interpersonal skills and; understanding how risk factors contributed to his offending behaviour.
[35] Ibid 217-8.
[36] Ibid 217.
Ms Piat reported that the Applicant had received some general psycho-education regarding the impact of trauma and that he was engaged in various activities to assist with emotional regulation including cognitive strategies, mindfulness and controlled breathing strategies. Ms Piat concluded that the Applicant had made “positive progress towards addressing many of the factors associated with his sexual offending behaviour”.[37]
[37] Ibid 218.
In his statement dated 8 January 2020, the Applicant said that he spoke about his offending with Ms Piat and how the victim would have felt. He said:[38]
I am so ashamed I put someone else through this. I was raped as a child and would never want to do this to anyone else. This haunted me for a long time. I still remember the victim’s mother reading speaking in court about how the victim had suffered. I wish I could say sorry to her but I know I cannot contact her. I will never do this to anyone again.
[38] Ibid G11, 113 [94].
The Applicant attended counselling sessions in October and November 2019 with Nan Cameron to address the trauma of him being raped when he was 11 years old in Pakistan.[39] She provided an undated report in which she said there was evidence to support a diagnosis of PTSD. Ms Cameron worked with the Applicant on strategies to self-monitor and self-soothe. She educated him on the effects of trauma on his brain and his ability to cope. She taught him about the impacts of hypo and hyperarousal and identified existing strategies he used to manage these states as well as teaching him some new strategies to use in addition to the existing ones. She concluded that:[40]
He had a strong desire to “get better” and to be available to support his wife and child and be a good father to his daughter, as well as supporting his younger brother. Utilising his commitment to his family was highly effective in aiding him to develop new coping strategies and enhance existing ones.
[39] Ibid G19.
[40] Ibid 222-3.
The Applicant engaged Professor James Freeman to provide a “Forensic Psychology Assessment”. His report is dated 9 January 2020 and was relied upon at the earlier hearing in the Tribunal.[41] Professor Freeman made a confirmatory diagnosis of PTSD stemming from the Applicant having been raped as a child, and a diagnosis of Persistent Depressive Disorder due to exposure to multiple stressors in recent years.
[41] Ibid G20.
Professor Freeman said that:[42]
The origins of the offences are likely to stem from a number of contributing factors, such as: (a) alcohol impairment, (b) association with a negative peer support group, (c) young age and failure to recognise high-risk situations (and perhaps to some extent maladaptive sexual ideation), and (d) underlying poor mental health. More specifically, it is well-known that excessive alcohol consumption increases the likelihood of engagement in impaired behaviours and the Applicant accepts being extremely impaired. Additionally, [the Applicant’s] young age (and reduced capacity to recognise and respond appropriately to risk) would have been a contributing factor. That is, the Applicant’s behaviour is also consistent with what is known about younger males who experience difficulties recognising and responding appropriately to risk, and these tendencies have been linked to the prefrontal cortex that does not fully developed till the age of 25. [The Applicant’s] underlying (and untreated) mental health problems (e.g. PTSD) may have further impaired his decision-making, as PTSD is a chronically destabilising disorder which is considered a serious psychiatric illness that results in detriments in cognitive functioning including executive control. Finally and more broadly, he appears vulnerable to be influenced by other individuals (as evidenced by his behaviour in the community and in custody).
[42] Ibid 233 [14.2].
The Professor concluded that the Applicant’s risk of re-offending was in the low category and that there was evidence of positive rehabilitative outcomes.[43] He noted that he required ongoing treatment without which he may be at risk of further impaired decision-making.[44]
[43] Ibid [14.3].
[44] Ibid 234 [14.4].
When in prison in 2019, the Applicant engaged in a two-week rehabilitative program directed to his sexual offending. He engaged in further online programs for domestic violence, drug and alcohol abuse, anger management, healthy relationships and conflict resolution when in detention in June 2023.[45] Thereafter, the Applicant engaged in counselling provided by Anna Perry from Overseas Services to Survivors of Torture and Trauma (OSSTT).[46] She helped him by teaching him tools he can use when he finds himself in stressful situations.
[45] Ibid G21.
[46] Ibid G16.
Further, the Applicant has shown that he can avoid crime whilst in the community over the last two and a half months since he was released from detention. He is living in a very stable and supportive environment with his mother and younger brother for whom he provides care. His desire to continue to care for his mother and brother provides a strong incentive to not re-offend. Since being released, he has taken steps to obtain his full driver’s licence and he has successfully completed the course to obtain a white card which enables him to work in the construction industry. He has arranged a job as a painter and he has the further option of obtaining work as a mechanic with his mother’s partner who is willing to support him.
When giving evidence to the Tribunal, the Applicant showed maturity and a genuine desire to reintegrate into the community. His focus is on caring for his family and obtaining work. He hopes to re-engage with his six-year-old daughter and to be a good father to her. He expressed appropriate remorse for his offending and understands the impact it had on the victim. He also understands the negative effect of drugs and alcohol on him which he has addressed by engaging in appropriate courses and by abstaining. He has taken appropriate steps to address his PTSD. I was very impressed with the Applicant as a witness. He answered questions honestly and in a very calm manner. I was also impressed by the evidence given by the Applicant’s mother, aunt and step-father who are helping him to reintegrate into society after about six years outside of the community.
In terms of risk of re-offending, I consider it to be very positive that the Applicant has voluntarily engaged with a significant number of counsellors and other professionals with the express purpose of addressing issues which contributed to his offending. The Applicant was incarcerated (in prison and detention) from December 2018 to November 2024 and he has used that time to reflect on his past behaviour and to take appropriate steps towards rehabilitation. He was assessed as at January 2020 as a low risk of re-offending. Since that date he has engaged in additional counselling and rehabilitative programs. He is now a mature 25-year-old (compared to an immature 15 year old). There are stark differences between the juvenile who committed the act of rape and the person who appeared before the Tribunal: he is no longer an adolescent and is more mature; he no longer takes drugs or drinks alcohol; he avoids negative peer influences; through counselling, he has addressed his PTSD and developed a genuine insight into the wrongfulness of his past behaviour. In conclusion, I consider that he is adequately rehabilitated and that there is a very low risk of re-offending.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
The Respondent accepts that, irrespective of my decision, the Applicant will remain in the community. However, the Respondent submits that the protection of the Australian community is best served by the Applicant being subject to strict visa conditions designed to ensure community safety.
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[47] The Applicant committed a very serious crime but he was a juvenile at the time and he has not been convicted of any further criminal offending since the isolated incident in March 2015 and he has shown himself able to behave in the community for the last two and a half months. It is my view that the Applicant’s risk of re-offending is very low. I disagree with the Respondent’s contention that the offending was so serious that even a low risk of re-offending is unacceptable.[48] He committed a very serious crime as a juvenile but I have every confidence that, as a mature 25 year old who has undergone adequate rehabilitation, he will not re-offend.
[47] Direction 110 (n 4) at 8.1(1).
[48] Ibid 8.1.2(1).
In the circumstances where there remains even a low risk of re-offending, I conclude that the protection of the Australian community is a factor that weighs against the Applicant but only marginally so.
Family Violence – 8.2 of Direction 110
As stated above in these reasons, the Applicant has engaged in online family violence which caused fear and harassment to his ex-wife. In considering the seriousness of the family violence engaged in by the Applicant, the following factors in paragraph 8.2(3) are 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 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.

The Respondent has identified at least four online incidents of family violence over the span of less than a year. As set out above in these reasons, the Applicant denies most of the allegations which have not been tested in a court. The documents produced under summons by the Queensland Police Service provide reports of very serious harassment which would clearly come within the definition of family violence.[49] They indicate that the only reason the Applicant was not charged for breaching the order was because he was on Christmas Island. In relation to the 11 April 2022 report, the documents indicate that the Applicant’s wife refused to provide a statement regarding the incident because of concerns regarding previous inaction and that she walked out of the police station before the police could obtain a notebook entry. The evidence before the Tribunal is sufficient to make a finding that the Applicant engaged in online domestic violence directed to his ex-wife over a period of less than 12 months. The particulars of the conduct cannot be established on the evidence but a finding of domestic violence renders relevant paragraph 8.2 of Direction 110.
[49] Respondent’s Tender Bundle, TB2.
The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of 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.[50] In this case the family violence outlined in the police documents was very serious but it is limited to four incidents online spanning a period of less than a year with the particulars of the incidents incomplete. There was no suggestion that the Applicant was violent towards his wife when in the community with her. The Applicant showed maturity and contrition when giving evidence to the Tribunal which was consistent with the rehabilitative steps he has taken by engaging in the online programs for domestic violence, drug and alcohol abuse, anger management, healthy relationships and conflict resolution when in detention in June 2023. Whilst the Applicant denied much of the alleged family violence, the fact that he engaged in the online programs directed towards family violence, anger management and healthy relationships indicate that he has accepted responsibility for his actions and the need to rehabilitate himself. I consider that the Applicant has taken appropriate steps to rehabilitate himself and to address the issues that may have contributed to his acts of family violence.
[50] Direction 110 (n 4) at 8.2(1).
Nevertheless, a person who commits multiple acts of family violence would expect to have their visa application refused.
The Applicant’s domestic violence is a factor that weighs in favour of refusing the Applicant’s visa but only moderately so when balanced with his rehabilitation and given that the particulars of the allegations are denied and have not been established on the evidence.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of Direction 110:
(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.
The Applicant came to Australia on 28 February 2013. He has lived in Australia for about half of his life, having arrived at the very young age of 13 years old and gone into high school. His mother, younger brother and aunt will be devasted if his visa application is refused. The Applicant was 15 years old when he offended and he was imprisoned when he was 18 years old. He was not released into the community until he was 24 years old. Between the age of 13 and 18 he had three years at school and some limited employment which would be considered a positive but not significant contribution to the Australian community. He also was the primary carer for his daughter for the first eight months of her life whilst his ex-wife went back to work. He has strong familial links and some limited links to others in the community. The strong ties that the Applicant has to the Australian community is a factor that weighs heavily in favour of not refusing the Protection visa.
Best interests of minor children – 8.4 of Direction 110
I must determine whether the visa refusal and the non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[51]
(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.
[51] Ibid 8.4(4).
The Applicant has a six-year-old daughter with his wife from whom he is now separated. He does not know where his daughter is living but he hopes to have contact with her and be a good father for her. The protection order currently prevents him from contacting his ex-wife until September 2026. He wants to see his daughter again and is prepared to be patient. He was the primary carer for his daughter from soon after her birth in April 2018 until he was imprisoned in December 2018. He last spoke to his daughter in 2022 because his ex-wife has made contact difficult. In his statement dated 8 January 2020, the Applicant described how his daughter’s visits have helped him in prison. He expressed his love for his daughter and said that they spoke every day on the phone. The Applicant’s ex-wife said in her statement dated 13 January 2020 that he was a good father to their daughter and that she “notices him straight away and runs straight to him" on their prison visits. I expect that at some stage the Applicant will resume a positive parenting role with his daughter. I consider that it would be in the best interests of his daughter if the Protection visa is granted.
The Applicant has a younger brother who is 15 years old with whom he has a very strong and loving relationship. The brother has written a supportive statement about how his older brother has looked after him and how he has missed him. The younger brother will benefit from the Protection visa being granted. Refusal would not be in his best interests.
The Applicant has three cousins who are the children of his aunt. She explained in her statement dated 2 May 2024 about their strong relationship and the negative impact of him not being in the community with them. Refusal of the Protection visa would not be in their best interests but I would give this very little weight given that the children are being looked after by his aunt and he is not their father.
It would be in the best interests of his daughter, younger brother and three cousins if the Protection visa were granted but I would give this factor less weight because he can resume his relationship with them even if the Protection visa is refused and he remains on the BVR. Nevertheless, this is a factor that weighs significantly in favour of not refusing the Protection visa.
Expectations of the Australian community – 8.5 of the Direction
The Applicant has failed to obey the laws of Australia and would therefore expect to be refused a Protection visa. This expectation of refusal applies in particular to the Applicant because he has committed rape, being a violent and sexual crime, and he has engaged in family violence. I note that this expectation applies regardless of whether the Applicant poses a measureable risk of causing physical harm to the Australian community. His criminal conduct is a serious but isolated incident committed as a juvenile when only 15 years old and he has since undergone adequate rehabilitation and never re-offended. Australia may afford the Applicant a higher level of tolerance for his criminal activity because he has lived in Australia from a very young age of 13 years old.
This is a factor that weighs moderately in favour of not granting a Protection visa.
Other Considerations
In deciding whether to exercise the discretion to refuse to grant a Protection visa, I must also take into account, where relevant, the ‘other considerations’ listed in Direction 110, but these are not exhaustive.[52]
[52] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 [86].
Legal Consequences of Decision – 9.1 of Direction 110
The Applicant was found by a delegate of the Minister to be owed protection. Therefore paragraph 9.1.1 of the Direction is engaged and non-refoulement obligations are engaged in relation to the Applicant.[53]
[53] Direction 110 (n 4) 9.1.1(1).
Paragraph 9.1.1 of Direction 110 provides:
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations
The provisions of s 197C(3) of the Act and paragraph 9.1.1(2) of the Direction are engaged because a protection finding has been made in the course of considering his application for a protection visa. In these circumstances, an officer of the Respondent’s Department is not authorised to remove the Applicant from Australia unless the Applicant requests that he be removed to his country of nationality. No such request has been made by the Applicant. It follows that no weight would be given to any risk of harm that would arise if returned to Afghanistan.
Bearing in mind the protection finding, were this Tribunal to exercise its discretion to refuse the Protection visa, the Applicant would not be removed and would remain in the community subject to his BVR.
This is not a case where removal or detention is a consequence of affirming the decision under review. The Applicant will stay in the community if the decision is affirmed but he will remain subject to the conditions of his BVR. By contrast, if I find in favour of the Applicant, he will potentially be granted a Protection visa which will allow him to remain in Australia permanently without the conditions of a BVR. The preferable outcome for the Applicant is a Protection visa (as opposed to a BVR). The legal consequence of potentially remaining subject to a BVR is a factor that weighs in favour of the Applicant, but with limited weight given that the differences in potential outcomes are not as significant as they used to be when removal or further detention were potential outcomes.
Extent of impediments if removed – 9.2 of Direction 110
Direction 110 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to Afghanistan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The Applicant is 25 years old and in good physical health. He has been diagnosed with PTSD and had a drug problem in the past. He has never lived in his home country and has no close family there. There would be substantial language and cultural barriers if he returned to Afghanistan and the support needed for his mental health would be limited.
If removed the Applicant would face very significant impediments but because there is no prospect of removal, no weight would be given to this consideration. The Applicant is subject to a protection finding and therefore does not face the prospect of removal from Australia. It follows that no or neutral weight would be given to this consideration.
Impact on Australian business interests – 9.3 of Direction 110
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the power under s 501(1) to refuse to grant the Protection visa to the Applicant.
The primary considerations of the protection and expectations of the Australian community and family violence weigh against the Applicant. I have found that the expectations of the Australian community weigh moderately in favour of refusing the Protection visa. The primary consideration of the protection of the Australian community is generally (but not always) to be given greater weight than the other primary considerations, but in this case, the ‘generally’ would not apply because the Applicant is adequately rehabilitated and is a very low risk of re-offending. I have given limited weight to the two primary considerations of protection of the Australian community and family violence, and I have only given moderate weight to the expectations of the Australian community.
The countervailing factors are the two primary considerations of the Applicant’s ties to Australia and the best interests of children plus the other consideration of the legal consequences of the decision. I have given heavy weight to the Applicant’s ties to Australia because he came here at a very young age, attended high school and has been here for about half of his life and because he has his mother, younger brother, daughter and an aunt in Australia. I have given significant weight to the best interests of children, in particular his six-year-old daughter and his 15 year old younger brother.
I conclude that the countervailing factors outweigh the three primary considerations of the protection and expectations of the Australian community and family violence. The important factors in making that evaluation are that the Applicant has adequately rehabilitated himself since his isolated criminal activity when 15 years old and that there is a very low risk of him re-offending plus the fact that the Applicant has close ties to the Australian community and that there are children whose best interests would be served by the grant of a Protection visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides to not exercise the discretion under s 501(1) to refuse the grant of a Protection visa.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

..................[sgd]......................................................
Associate
Dated: 5 February 2025

Date(s) of hearing: 29 and 30 January 2025

Applicant’s Representative: Self-represented

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	29 and 30 January 2025
Applicant’s Representative:	Self-represented
Solicitors for the Respondent:	Sparke Helmore