BQWM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3108

BQWM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3108 (4 October 2023)

Division:GENERAL DIVISION

File Number(s):      2023/5136

Re:BQWM

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Skaros

Date:4 October 2023

Place:Sydney

The Tribunal affirms the delegate’s decision dated 11 July 2023, not to revoke the mandatory cancellation of the Applicant’s visa.

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

Senior Member R Skaros

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether this is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – links to the Australian community – expectations of the Australian community – legal consequences of decision – where applicant has been refused a protection visa - extent of impediments to removal – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth) s 499, 501

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Afu v Minister for Home Affairs [2018] FCA 1311

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 99 – 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

Department of Foreign Affairs and Trade, Country Information Report, Pakistan 25 January 2022

REASONS FOR DECISION

Senior Member R Skaros

4 October 2023

THE APPLICATION

1. This is an application for review of a decision made by the delegate of the Minister of Immigration, Citizenship and Multicultural Affairs (the Respondent) on 11 July 2023 not to revoke the mandatory cancellation of the Applicant’s Class WE Bridging (Subclass 050) visa (the Bridging E visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The applicant was notified of the decision on 12 July 2023.

2. For the following reasons, the Tribunal has decided to affirm the delegate’s decision not to revoke the mandatory cancellation of the Applicant’s visa.

   BACKGROUND

3. The Applicant is a 33-year-old citizen of Pakistan. He travelled to Australia as an unauthorised maritime arrival on 5 June 2013.[1] The Applicant was subsequently granted a Humanitarian Stay (Temporary) Subclass 449 visa and a series of Bridging E visas.

   [1] G2, p 109.

4. On 23 June 2017, the Applicant applied for a Class XE Safe Haven Enterprise Visa (SHEV) Subclass 790. That application was refused on 17 April 2019 on the basis that the Applicant was not a person in respect of whom Australia has protection obligations.[2] On 7 June 2019, the Immigration Assessment Authority (IAA) affirmed the decision to refuse the protection visa.[3] The Applicant sought judicial review of that decision, however, on 14 November 2019, the Federal Circuit Court of Australia (as it was then known) dismissed the application.

   [2] G2, p 117.

   [3] G2, p 139.

5. Relevantly, the Applicant was granted a Bridging E visa on 6 July 2017.[4] That visa was mandatorily cancelled on 28 June 2019 under s 501(3A) of the Act on the basis that the Applicant did not pass the character test, as he had a substantial criminal record, and was serving a sentence of imprisonment on a full-time basis.[5]

   [4] G2, p 110.

   [5] Ibid.

6. Cancellation of the Applicant’s Bridging E visa was triggered by his conviction in the District Court of NSW (Lismore), on 12 April 2019, of using a carriage service to groom a person under 16 years for sex for which he received a sentence of one year and six months imprisonment.

7. The Applicant was re-notified of the mandatory cancellation of his Bridging E visa, and on 31 January 2022 sought revocation of the cancellation of that visa.[6]

   [6] G2, p 44.

8. On 11 July 2023, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s Bridging E visa. On 14 July 2023, the Applicant sought review of that decision.

   Evidence before the Tribunal

9. The documentary evidence before the Tribunal includes:

   ·The s 501G documents (G-Documents): Exhibits G1 – G4, comprising of pages 1 – 209.

   ·The Applicant’s Statement (undated), lodged with the Tribunal on 14 August 2023: Exhibit A1.

   ·The Applicant’s further statement dated 11 September 2023: Exhibit A2.

   ·The Applicant’s bundle of documents comprising of the following:

   (a)Submissions, response to the Respondent’s SFIC and letter of remorse: Exhibits A1, A2 and A3.

   (b)Psychological assessment report prepared by Ms E Tong (Psychologist), NSW Service for Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated 5 July 2023, summary of psychological treatments prepared on 29 August 2023 and International Health and Medical Services (IHMS) records relating to the Applicant: Exhibits A4, A5 and A6.

   (c)Statement of the Applicant’s initial protection claims dated 22 June 2017: Exhibit A7.

   (d)Media articles and news reports regarding events in Pakistan: Exhibit A8.

   (e)Clinical/medical information about the Applicant’s parents who reside in Pakistan: Exhibit A9.

   (f)Documents in Urdu (with translation), which the Applicant indicated are a threat letter dated 4 April 2013 and a fatwa (religious edict or decree) issued by a mufti (Islamic religious leader) in relation to him dated 15 April 2013: Exhibits A10 and A11.

   ·The Respondent’s Statement of Facts, Issues and Contentions (the Respondent’s SFIC) dated 5 September 2023: Exbibit R1.

   ·Department of Foreign Affairs and Trade (DFAT) Country Information Report, Pakistan, dated 25 January 2022: Exhibit R2.

10. The Applicant appeared before the Tribunal in person to give evidence at a hearing held on 18 September 2023. The Applicant was self-represented. The Respondent was represented by Mr Ingmar Duldig of Clayton Utz.

11. As the Applicant was self-represented, the Tribunal explained to him the procedures of the Tribunal, the issues in the review and how the hearing will proceed. The Applicant was given an opportunity to address and respond to matters raised by the Respondent’s representative.

12. The Tribunal was assisted by an interpreter in the English and Urdu languages, though it was apparent that the Applicant had a good command of the English language. The Applicant presented much of his evidence in English and when he did rely on the interpreter, he often interjected to clarify some of the words or expressions used by the interpreter.

    LEGISLATIVE FRAMEWORK

13. Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. This provides that:

    (4)The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

14. The Tribunal is satisfied that on 31 January 2022 the Applicant made the representations required by paragraph 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.[7]

    [7] G2, p 44

15. Accordingly, there are two issues remaining before the Tribunal:

    ·whether the Applicant passes the character test; and if not

    ·whether there is another reason why cancellation of the Applicant’s visa should be revoked.

    Does the Applicant pass the character test?

16. The character test is defined in subsection 501(6) of the Act. Under paragraph 501(6)(a), a person will not pass the character test if they have a ‘substantial criminal record’. This phrase is defined in paragraph 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

17. On 12 April 2019, the Applicant was sentenced to a term of imprisonment of one year and six months in relation to his conviction of using a carriage service to groom a person under 16 years for sex. The Tribunal finds that the sentence imposed on the Applicant is a sentence of imprisonment of more than 12 months and amounts to a substantial criminal record. It follows, and the Tribunal finds, that the Applicant does not pass the character test.

18. The issue remaining before the Tribunal is whether there is another reason why the cancellation should be revoked.

    Is there another reason why cancellation of the Applicant’s visa should be revoked?

19. In considering subparagraph 501CA(4)(b)(ii) of the Act, the Tribunal is bound by subsection 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies in considering whether the cancellation of the Applicant’s visa should be revoked.

20. In deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction provides the framework within which decision makers must approach this task. The Direction sets out five primary considerations and four ‘other’ considerations as well as specifying how to take the relevant considerations into account.   

21. The principles in paragraph 5.2 of the Direction are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    Applying the Direction

22. 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 sections 8 and 9, where relevant to the decision.

23. Paragraph 7 states that information from authoritative and independent sources should be given appropriate weight, that primary considerations should generally be given greater weight than the other considerations, and that one or more primary considerations may outweigh other primary considerations.

24. Paragraph 8 of the Direction sets out the primary considerations. These are:

    (a)protection of the Australian community from criminal or other serious conduct:

    (b)whether the conduct engaged in constituted family violence:

    (c)the strength, nature and duration of ties to Australia:

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

    (e)expectations of the Australian community.

25. Paragraph 9 of the Direction sets out ‘Other’ (non-exhaustive) considerations which, include:

    (a)legal consequence of the decision:

    (b)extent of impediments if removed:

    (c)impact on victims; and

    (d)impact on Australian business interests.

26. The Tribunal has considered each of the primary and other considerations.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

27. In considering the protection of the Australian community, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Direction specifies that decision makers must have regard to the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

28. Paragraph 8.1(2) of the Direction requires decision-makers to 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 nature and seriousness of the non-citizen’s conduct to date

29. The Applicant’s National Criminal History check indicates that on 12 April 2019 he was convicted in the District Court of NSW, Lismore, of using a carriage service to groom a person under 16 years for sex for which he was sentenced to a term of imprisonment of one year and six months.[8]  

    [8] G2, p 33.

30. The offence for which the Applicant was convicted carries a maximum penalty of 12 years imprisonment. The Applicant pleaded guilty at an early stage and was committed for sentence on 5 February 2019.[9]

    [9] G2, p 35.

31. The Tribunal has had regard to the circumstances of the offence for which the Applicant was convicted as detailed by Her Honour Judge Wells in the sentencing remarks.[10] It was noted that the Applicant came to the attention of a Queensland police operation which investigated an advertisement placed by the Applicant on a website called 'Lokanto'. As part of the investigation, the police officer assumed the online identity of a 14-year-old female child living in Brisbane. The advertisement on 'Lokanto' said, “Hi any school teenager girls need a good cash please contact me if anyone like cash Brisbane and Gold Coast or Lismore New South Wales {SIC}” and it depicted images of $50 and $100 notes. A second advertisement was also placed by the Applicant which was similar in nature.

    [10] G2, pp pp 35 - 41.

32. There were eight separate communications between the Applicant and the AOI during the period of the investigation, which was from 10 March 2017 to 22 March 2017. Judge Wells remarked that the Applicant was direct in his communication asking for photographs and giving specific instructions. The Applicant made plans to meet and engage in sexual activity with the AOI, whom he believed was a 14-year-old girl. The AOI asked the Applicant if he minded that she was 14 years old, to which he responded, “Yep don’t worry about that and can you please send me your pictures so I can have a look”. The last of the indecent discussion with the AOI occurred on 22 March 2019.

33. The Applicant was arrested on 16 July 2018 and pleaded guilty. He admitted to placing the online advertisement. He told police that he knew the person he was communicating with was 14 years old but thought she looked 16 or 17 years old. He told police he did not initially know it was against the law to contact a 14-year-old girl for sex but once he became aware he ended contact. The Judge considered the Applicant’s credibility to be ‘dubious in many ways’ and did not accept his explanation, given he had been in Australia for four and a half years. Her Honour considered it more likely that the Applicant found out he may well be caught engaging in such activity either online or if he actually met the complainant. The Judge remarked that it was patently clear that the Applicant was seeking and quite prepared to engage in sexual activity with a 14-year-old girl.  

34. Her Honour considered relevant that the Applicant placed an advertisement and trawled through the Internet for teenage schoolgirls in the area with offers of payment of cash. She noted that the Applicant’s conversations were straightforward and to the point, taking clear steps to meet up for some form of sexual activity. The Judge remarked that although it made the matter objectively serious, it could not be said that he engaged in any ongoing efforts at grooming, but there was no doubt as to the Applicant being untroubled by the fact that the girl, who he believed he was contacting, was only 14 years old.

35. In sentencing the Applicant, Judge Wells took into account the Applicant’s circumstances, including an incident, when he was 12 years old, during which he was touched on his private parts on an occasion by a family friend. The Judge also took into account that the Applicant experienced episodes of violence within his family. Her Honour considered there was little to connect those factors with the Applicant’s offending conduct, but found they were relevant to his overall background and subjective circumstances. Her Honour also had regard to a sentence assessment report which raised concerns about the Applicant’s insight into his offending conduct and risk of re-offending, and ultimately concluded that only a sentence of full-time custody was appropriate. The Applicant was sentenced to a term of imprisonment of one year and six months.

36. In considering the nature and seriousness of the conduct, the Tribunal has had regard to matters in paragraphs 8.1.1(1) of the Direction as follows:

    Is the conduct viewed very seriously or seriously by the Australian government and the Australian community?

37. Without limiting the range of conduct that may be considered very serious, paragraph 8.1.1(1)(a) of the Direction states that sexual crimes are viewed very seriously by the Australian Government and the Australian community. The items considered serious conduct in paragraph 8.1.1(1)(b) do not appear to apply in this case.

38. The Applicant’s offending conduct was of a sexual nature and involved online communications with a person, whom the Applicant believed to be a 14-year-old girl, to arrange to meet up and engage in sexual activity.  The Applicant was convicted of using a carriage service to groom a person under 16 years for sexual activity. The Tribunal considers that the offending conduct comes within the types of crimes viewed ‘very seriously’ by the Australian government and the Australian community.  

    The sentence imposed by the court 

1. With the exception of sentences imposed for crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) of the Direction, which do not apply in this case, the Tribunal is required to have regard to the sentence imposed by the court for crimes committed by the Applicant.

2. The sentence imposed was one year and six months. While this was well below the maximum term of imprisonment for this offence, the Tribunal nevertheless considers that a full-time custodial sentence, which Judge Wells considered to be the only appropriate sentence having regard to all the circumstances, reflects the objective seriousness of the Applicant’s offending.

   The frequency, trend and cumulative effect of the offending

3. The Tribunal must take into account the frequency of the offending and whether there is any trend of increasing seriousness under paragraph 8.1.1(1)(d) of the Direction.

4. The offence for which the Applicant was convicted is the only offence on his criminal history check. The Applicant’s offending was not frequent or cumulative.

   Providing false or misleading information to the Department

5. Providing false or misleading information to the Department, including not disclosing prior criminal offending must be taken into account under paragraph 8.1.1(1)(f). There is no information before the Tribunal which suggests that the Applicant provided false or misleading information to the Department, including any failure to disclose past criminal offending.

   Reoffending since being formally warned

6. The Tribunal is required to consider whether the Applicant has reoffended since being formally warned is a matter to be taken into account under paragraph 8.1.1(1)(g) of the Direction. There is no information before the Tribunal that the Applicant has received a formal warning.

   Offences committed in another country

7. The Tribunal is required to consider whether the Applicant has committed an offence in another country that is classified as an offence in Australia must be taken into account under paragraph 8.1.1(1)(h). There is no information before the Tribunal to indicate that the Applicant has committed offences in another country.

   Conclusion on the nature and seriousness of the conduct to date

8. In considering the nature and the seriousness of the Applicant’s conduct to date and having had regard to the matters specified in paragraph 8.1.1(1) of the Direction, the Tribunal concludes that the Applicant’s criminal conduct is very serious.

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

9. The Direction specifies that in considering the need to protect Australian community 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 (paragraph 8.1.2(1)).

10. Paragraph 8.1.2(2) provides that 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 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

    Nature of harm should the Applicant engage in further criminal or other serious conduct

11. The Respondent contends that the harm that would be cause to the Australian community should the Applicant reoffend would be substantial, and includes economic, physical and financial harm. It was submitted that there is nothing in the Direction or in any authority that suggests the Tribunal is limited, in its assessment of the potential magnitude of future harm, to assessing the harm that has been caused previously. It was contended that the fact the Applicant's criminal intention to engage in sexual activity with a 14-year-old girl went unrealised (because the advertisement was responded to by the AOI rather than a real teenager) does nothing to diminish the gravely serious consequences that might result if the Applicant were to commit a similar offence in the future.[11]

    [11] R1, [24, 25].

12. The Tribunal notes that the Applicant did not meet up with the AOI, whom he believed was a 14-year-old girl, and the evidence indicates that communication between the Applicant and the AOI stopped after 22 March 2017. The Tribunal considers that paragraph 8.1.2(2)(a) is directed at considering the nature of the harm that might be suffered by individuals or the Australian community should the Applicant engage in the same type of criminal or other serious conduct.

13. While the Applicant’s communications with the person whom he believed was a 14-year-old girl was direct, involved giving instructions, requesting images and arranging to meet up to engage in sexual activity, the Applicant did not go through with the meet up or engage in the intended sexual activity. Nevertheless, the conduct in which he did engage, and of which he was convicted (notwithstanding it did not involve physical contact) was still very serious.

14. The Tribunal accepts, as submitted by the Respondent in closing submissions, that sexual offences, and in particular sexual offences against a minor, are serious offences which can cause significant trauma to victims. The Tribunal considers that if the Applicant engages in the same type of criminal conduct online (being grooming for sexual activity) with a minor, that this (of itself) could potentially result in serious and devastating psychological harm to a young victim. This could include severe psychological and emotional trauma, invasion of their privacy (as the consequence of requesting images and photos) and long-term psychological effects which may have lifelong implications. As such, the Tribunal considers that any risk the conduct may be repeated would be unacceptable.

    Likelihood of engaging in further criminal or other serious conduct

15. In considering the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, the Tribunal is required to into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.

16. The Applicant contends that there is no risk of him re-offending because he takes full responsibility for his actions. He said he acknowledges his wrongdoing and understands the consequences of his conduct. His offending, which resulted in him being in custody and detention since 2017, has changed his life. He said he has disappointed the community and his family. He has matured as a person and is of good character. He has had no incidents of misconduct or wrongdoing whilst in custody or in Immigration detention. The Applicant said he is ashamed and remorseful for his conduct. His time in prison has given him greater insight into his conduct and he realised he needed to make changes.[12] In submissions to the Tribunal, the Applicant said he understands that it is completely wrong to seek to satisfy his sexual needs through engaging with minors, he knows it is against the law and that it would be traumatising for victims. The Applicant said he has learnt his lesson and will never repeat the offending conduct.[13]

    [12] G2, p 64, pp 76 - 78

    [13] A2 and A3.

17. In relation to his rehabilitation, the Applicant said when he was in prison he did not qualify for any programs as his prison sentence was too short. After being transferred to Immigration detention, the Applicant completed various courses, including drug and alcohol, and anger management programs.[14] In submissions to the Tribunal, the Applicant indicated that he has been participating in the Smart Recovery Program run by IHMS at the detention centre. He said he has tried to get into a sex offenders’ program, but none were available in the detention centre. He said he will enrol in such a program as soon as he is released from detention.

    [14] G2, pp 74 – 75.

18. The Tribunal has had regard to the psychological assessment report which sets out information provided by the Applicant to the psychologist about his past experiences in Pakistan and events in Australia. The Applicant informed the psychologist that he had experienced discrimination and persecution in Pakistan because he is a Shi’a Muslim, that he was assaulted and reported to police, and that he fled to Australia by boat. He said he was charged with online grooming in Australia after speaking to a police officer who was posing as a 14-year-old girl online. He pleaded guilty and was sentenced to 18 months imprisonment. The Applicant reported being touched on the genitals when he was 14 years old by an older male who was staying with the family as a guest. The psychologist diagnosed the Applicant with depression, anxiety and PTSD and recommended he receive trauma counselling and other psychological treatment to assist him with managing his stress, low mood, and other PTSD related symptoms. The report noted that the Applicant had previously attempted to self-harm (when he was on Christmas Island and facing deportation), but at the time of the assessment he did not have suicidal ideations and that his risk of self-harm was low to moderate.[15] The Tribunal has also had regard to information in the summary of psychological treatment report which indicates that the Applicant is in need of ongoing psychological assessment and intervention.[16]

    [15] A4

    [16] A5

19. The Applicant stated that he is willing to comply with any conditions placed on him by the Department. He has also been placed on the Sex Offenders Register and that if released from detention he will have to comply with conditions, which include informing them of his address, email, social media accounts and any interaction he may have with a minor. He said he also needs to get permission from the child protection registry to travel interstate or overseas.[17]

    [17] A2

20. The Applicant also submitted that his sick and disabled parents in Pakistan need his support and that he needs to take them outside Pakistan because they are facing discrimination. He referred to the clinical notes provided to the Tribunal which indicate that his father has paralysis in his right leg, among other medical issues, and that his mother suffers from mental illness and has some symptoms of schizophrenia, as well as other medical issues which require regular check-up.[18]

    [18] A9.

21. The Applicant gave evidence he has a good network of friends who are willing to support him and help him reintegrate into the community, including assisting him with accommodation and work. The Tribunal has had regard to the letters of support from the Applicant’s friends, Mr RS, Mr AKN, Mr KNK and Mr HUK. They indicate that they have known the Applicant for years and that he is a kind, hard working person who is willing to help others. Mr RS stated that the Applicant is remorseful for his actions and has matured since being in prison. The Applicant’s friends all indicated that they would be willing to provide accommodation and financial support to the Applicant and assist him in resettling in the community. Mr HUK also indicated that he has spoken to his employer, who agreed to provide the Applicant with employment.[19]

    [19] G2, 79 – 83.

22. The Tribunal has also had regard to Judge Well’s consideration of the sentence assessment report in her sentencing remarks. Her honour noted two matters of concern: Firstly, that the Applicant had little, if any, insight into the potential impact of his behaviour on a young girl or upon the community, and that he did not seem to understand the seriousness with which these matters are taken. Secondly, the Applicant had been assessed as having a high risk of re-offending. Notwithstanding this assessment, her honour did not form the same view that the Applicant is a high risk of re-offending. Her honour considered the time the Applicant had spent in custody will underline to him how seriously his offences are regarded. She also considered that the police investigation might emphasise to him the prospect of being caught should he engage in such conduct again.[20]

    [20] G2, 40.

23. The Respondent contends the Applicant poses a real and not insignificant risk of reoffending because he has not undertaken any specific rehabilitation for sexual offending and his capacity to refrain from reoffending has not been tested in circumstances where the Applicant is not under some form of supervision.[21] The Respondent aptly observed that the psychologist’s assessment report, which diagnosed the applicant with PTSD, does not advance any opinion as to the Applicant's level of risk of reoffending.

    [21] R1 [28, 30].

24. Under cross examination, when questioned about the events leading up to the offence, the Applicant said he accepted the facts as set out in the sentencing remarks. When asked if it was true that he was not aware it was illegal to have sexual activity with a 14-year-old, the Applicant said this was what he told the police. He said he made a mistake and should not have spoken to the person online. When asked why he pursued a 14-year-old for sexual activity, the Applicant said there is no justification and whatever he says will just be used against him and that it was better for him to just take responsibility for the offence. When asked again why he pursued a 14-year-old girl for sexual activity, the Applicant said it does not matter what he says, whether he was intoxicated or was not in his senses or did not know the law, he knows none of these reasons will be accepted. The Applicant said he has not had any issues with minors in the four and a half years he lived in Australia, except for that one offence.

25. When asked if he had a problem, such as desire to pursue minors for sex, the Applicant said no, it was his first and last mistake. The Applicant said there was no physical involvement, and he did not go to meet up with the person. When asked about contributing factors for his conduct, the Applicant said he does not use drugs and that sometimes, when he goes out, he drinks alcohol (because he can in Australia). The Applicant said he was sexually active at the time and should have done what was legal.

26. When asked about the rehabilitation courses he completed, the Applicant referred to the drugs and alcohol program and anger management program and said there was no specific sex offender program he could undertake in detention. He said he is undertaking the smart recovery program which has helped him assess situations, make better decisions, engage with the community, and think about others.

27. The Respondent asked the Applicant about the psychological assessment report and its purpose. The Applicant said it was to get mental health assistance because he had a history of self-harm when he was on Christmas Island. When asked about his PTSD diagnosis, the Applicant said he had experienced domestic violence growing up, including beatings from his father. He indicated that he could not get help from anyone because domestic violence is normalised in Pakistan. He said he told the psychologist about the discrimination he faced in Pakistan and the attack on him in 2008. The Applicant said he also told the psychologist about the sexual abuse he experienced.

28. The Applicant accepted, as was put to him, that the psychologist report does not make an assessment about his risk of reoffending and said it was not an assessment that could be undertaken by IHMS and that he would have to pay an external provider for such a report. When asked if his mental health problems contributed to his offending, the Applicant said he has not provided an explanation because he does not want to be seen as someone who is trying to justify his actions.  He said at the time of the offence he was sexually active and engaged with this online. When asked if it was part of his psychology that he is attracted to minors, the Applicant said no, he made a mistake and would not do it again.  

29. In assessing the likelihood of the Applicant engaging in further criminal or serious conduct, the Tribunal has carefully considered the relevant evidence before it as follows.

30. In this case, the Applicant has been convicted of only one offence, albeit very serious, of using a carriage service to groom a person under 16 for sex. The Tribunal accepts as contended by the Applicant that prior to being charged for this offence, he had lived in the community for four and a half years without incident.

31. The Tribunal has had regard to the Applicant’s fervent expressions of remorse, including his claim to have insight into his offending, to understand the adverse effect of his conduct on a victim, and his undertaking to never reoffend and to comply with all the conditions to which he will be subject when released into the community. The Tribunal acknowledges that expressions of remorse can reflect a person’s insight into their offending and may lower their risk of reoffending. However, the Tribunal had a slight concern about the sincerity and genuineness of the Applicant’s expression of remorse (and claim to have insight into his offending) given his unwillingness (or possibly his inability) to explain the reason for his offending. While the Applicant indicated that he was sexually active at the time and so “engaged with it online”, he provided no explanation as to why he pursued a minor (or someone whom he believed to be a minor) for sexual activity.

32. The Applicant denied that he had an attraction to underage girls or that drugs or alcohol were the cause of his offending. When asked if it was because he was unaware that it was illegal (as was indicated in the sentencing remarks), the Applicant said that was what he told the police. However, he made no admission that this was the reason he engaged in the offending conduct.

33. In sentencing the Applicant, Judge Wells took into account the Applicant’s evidence that he suffered an episode of sexual abuse (which was limited to being touched on his private parts on an occasion by a family friend) and that he experienced domestic violence (which included beatings) but considered there was little connection between those matters and the Applicant’s offending conduct. There is also no clinical evidence before the Tribunal which suggests that the Applicant’s past experiences of abuse and/or violence contributed to his offending conduct.

34. The Applicant was insistent in his evidence that there was no justification for his conduct and said that whatever reason he provides will not be accepted so it was better for him to take responsibility. The Tribunal acknowledges that causes and motives can be complex and that a person may genuinely regret their actions (and recognise their wrongdoing) even if they have difficulty understanding or explaining why they engaged in the offending conduct. It is of note that the Applicant has not had the opportunity to undertake a suitable sex offender’s program, which the Tribunal accepts was not available to him in prison or detention. This may have assisted the Applicant in understanding why he engaged in the offending conduct. It is also of note that the Applicant has not spent time in the community since his arrest.

35. The Tribunal accepts that the Applicant has completed several rehabilitation courses, however, they related to drugs, alcohol and anger management, and the evidence before the Tribunal does not suggest that drugs, alcohol, or anger were root causes of the Applicant’s offending.

1. The psychological assessment report and treatment summary for the Applicant indicate that he requires ongoing psychological assessment and treatment for PTSD, depression and anxiety, and while the reports refer to the Applicant’s conviction and his expressions of remorse and guilt, they provide no opinion as to why he engaged in the offending conduct.  There is no current clinical assessment as to the causes of the Applicant’s offending, whether those causes have been addressed and the effectiveness of any counselling or treatment received which would assist with gauging the Applicant’s recidivist risk.

2. Considering the above matters, the Tribunal is not satisfied that there is no risk that the Applicant will engage in further criminal or other serious conduct.

3. There are, however, several circumstances and protective factors which indicate that the Applicant is a medium to low risk of committing sexually based offences (online grooming) involving a minor. Her Honour Judge Wells considered that the Applicant was not a high risk of reoffending and found that his time in custody and the prospect of being caught would highlight to him the seriousness of his conduct. The Applicant has now spent a total of six years in custody and Immigration detention, this will likely have a deterrent effect and lower his risk of committing further offences. Also, the Applicant has no prior history of offending and there is no evidence of any misconduct or behavioural concerns whilst he was in custody and/or Immigration detention.

4. Other protective factors include the Applicant’s inclusion on the Sex Offenders Register which, upon release, will require him to comply with various reporting conditions.  The Applicant’s willingness to undertake a sex offender’s rehabilitation program, his desire to support his sick and disabled parents in Pakistan, including helping them leave Pakistan, and the support of his friends in the community, which include offers of accommodation, financial support and potential employment, when considered in combination, are also factors which lower the Applicant’s likelihood of reoffending.

   Conclusion on the likelihood of the Applicant engaging in further criminal or other serious conduct

5. Having carefully considered all the information and evidence before it, as discussed above, the Tribunal concludes that the Applicant is a medium-low risk of engaging in further criminal conduct. Notwithstanding this finding, however, the Tribunal has found that the psychological harm that could be caused to a young victim if the Applicant reoffends is potentially serious and devastating and has lifelong implications. The Tribunal considers that, in the circumstances, the application of the principle in paragraph 5.2(6) is appropriate in this case. It provides, in part, that in some circumstances 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 revoking a mandatory cancellation.

6. The Tribunal considers that sexual crimes against children, including those involving online grooming of minors for sex, even in the context of there being a medium-low risk of the conduct being repeated, come within the type of conduct considered so serious that countervailing considerations may be insufficient.

   Conclusion on primary consideration 1

7. The Tribunal has found the Applicant’s conduct to date to be very serious. It has also found that the harm that may be caused to a young victim if the Applicant reoffends could potentially be serious and devastating, such that even strong countervailing circumstances may not be sufficient to justify revocation of the mandatory cancellation, even in the context of a medium-low risk of reoffending. For these reasons, the Tribunal concludes that the primary consideration of protection of the Australian community weighs very heavily against revocation.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

8. Paragraph 8.2 of the Direction pertains to the Government’s serious concerns about non-citizens who engage in family violence. There is no information before the Tribunal which suggests that the Applicant has engaged in family violence related conduct. This consideration is therefore neutral.

   PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

9. Paragraph 8.3 of the Direction 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)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (4)Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that:

   (i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

   (ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   (iii)    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.

10. The Applicant has resided in Australia for over 10 years. He arrived by boat as an unauthorised maritime arrival in June 2013. He was almost 22 years of age at the time of arrival.

11. The Applicant has a history of employment in Australia, between 2014 and 2018, which includes working at a carwash, as a kitchen hand, cleaning, halal slaughtering, customer service, construction, security and hotel catering.[22]  He also completed a number of courses, including a construction white card, coffee course, security course, RSA course, Uber driver course, halal slaughtering course, first aid and a customer service training course. The Applicant also indicated that he volunteered at a mosque in Melbourne by helping prepare food and serving worshippers during Ramadan and helping coach the children’s cricket team on weekends. He also volunteered with council during Christmas and with a local community group.[23]

    [22] G2, p 59.

    [23] G2, 65 -66.

12. The Applicant does not have any immediate family members in Australia. His parents and two sisters reside in Pakistan and his brothers are in Turkey.  

13. The Applicant’s ties in Australia, include his friends Mr RS, Mr AKN, Mr KNK and Mr HUK.[24] There is no evidence before the Tribunal regarding the citizenship or visa status of the Applicant’s friends. In their written statements, the Applicant’s friends describe him as a kind, caring and responsible person. Some indicate it would be unfair if the Applicant’s visa is not revoked and he is unable to remain in Australia. However, there is no evidence before the Tribunal to suggest that any of the Applicant’s friends would be adversely impacted by a decision not to revoke the cancellation.

    [24] G2, 78 – 83. 

14. The Tribunal notes that the Applicant arrived in Australia as an adult, so did not spend any of his formative years in Australia. Of the 10 years that the Applicant has been in Australia, over six years were spent in gaol or Immigration detention. His residence in Australia, whilst in the community, has been as the holder of temporary visas.

15. The Tribunal considers that the Applicant’s ties to the Australian community are limited. There is no evidence which suggests that an Australian citizen or permanent resident will be adversely impacted by a non-revocation decision. The Tribunal considers that the impact of a non-revocation decision on the Applicant’s friends would be minimal.

16. The Applicant’s contribution to the Australian community through his employment and volunteer work are slight to moderate, having regard to the length of time he has resided in Australia, which did not include any of his formative years.

    Conclusion on primary consideration 3

17. In considering all the relevant factors in paragraph 8.3 and the weight attributed, the Tribunal concludes that the strength, nature and duration of the Applicant’s ties to Australia weigh slightly in favour of revocation.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

18. Paragraph 8.4(1) of the Direction requires a decision-maker to 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.

19. There is no information before the Tribunal which suggests that there are any children in Australia whose interests would be affected by the decision. This consideration is therefore neutral.

    PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

20. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

21. Paragraph 8.5(2) of the Direction directs that the non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are 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.

22. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

23. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. It states:

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

24. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[25]

    [25] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.

25. Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government on which the decision maker must have regard.

26. The Applicant in this case has breached the expectations of the community by engaging in very serious criminal conduct in Australia. Consequently, the expectation of the Australian community, as stipulated in paragraph 8.5(1), is that the cancellation of the Applicant’s visa should not be revoked.

27. The Tribunal notes that the Applicant’s offending falls within paragraph 8.5(2)(b), being the commission of a crime against children that is of a sexual nature. In the circumstances, the Australian community expects that the government should cancel the Applicant’s visa.

28. The Tribunal has found that the Applicant is a medium-low risk of re-offending.  Notwithstanding this, the expectations of the Australian community, as stipulated, applies regardless of the level of risk the Applicant poses to the Australian community: paragraph 8.5(3).

29. The Tribunal does not consider the circumstances of this case are such that the Australian community would afford the Applicant a higher level of tolerance as provided for in the principle at paragraph 5.2(5). The Applicant arrived in Australia as an adult, at the age of 22, and of the 10 years he has lived in Australia, over six have been spent in prison or Immigration detention.

    Conclusion on Primary Consideration 5

30. In considering the evidence overall, the Tribunal concludes that the primary consideration of the expectations of the Australian community weighs very heavily against revocation.

    OTHER CONSIDERATIONS

31. The Tribunal is required to take into account other consideration listed in paragraph 9 of the Direction.

    (a)Legal consequences of the decision

32. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.  

33. This decision relates to the mandatory cancellation of the Bridging E visa which was granted to the Applicant on 6 July 2017 in connection with his then pending application for a protection visa. As noted above, the Applicant’s protection visa was refused on 17 April 2019 and the decision was affirmed by the IAA on 7 June 2019. On 14 November 2019, the then Federal Circuit Court of Australia dismissed the application for judicial review of the IAA decision on the basis that it was not affected by jurisdiction error. The Applicant’s Bridging E visa was mandatorily cancelled on 28 June 2019. Following release from criminal custody, the Applicant was transferred to Immigration detention where he has remained since.

34. The Tribunal is mindful that if the cancellation of the Applicant’s visa is not revoked, he will continue to be detained under s 189 of the Act and be liable for removal from Australia as soon as practicably possible.[26] The Tribunal is also mindful that the Applicant will not be able to apply for a further visa whilst in the migration zone unless he is personally invited to do so by the Minister.[27] The delegate’s decision indicates that the Applicant made a request to the Minister under s 48B of the Act which was refused on 4 June 2021.

    [26] Migration Act, s 189.

    [27] Migration Act, ss 48A, 48B and 501E.

35. The Tribunal further notes that the Applicant’s Bridging E visa (had it not been cancelled on 28 June 2019) would have only been in effect until 35 days after the IAA made its decision.[28] As the IAA made its decision on 7 June 2019, the Applicant’s Bridging E visa would have (in any case) ceased to be in effect after 12 July 2019. This means, even if the Tribunal makes a decision to revoke the cancellation of the Bridging E visa, the Applicant will not be the holder of any visa. In the circumstances, the Applicant would still be liable for detention as an unlawful non-citizen unless he is able to apply for (and satisfy the requirements for the grant of) another visa to remain in the Australian community.

    [28] Migration Regulations 1994 (Cth) reg 050.511(1)(b)(iiia).

36. The Tribunal in this case is required to consider whether Australia has non-refoulment obligations. Paragraph 9.1(2) provides that:

    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

37. In circumstances where a non-citizen is not covered by a protection finding, any claims raised by the Applicant which may give rise to international non-refoulment obligations must be considered. In this case, the Applicant is not covered by a protection finding and, having already applied for (and been refused) a protection visa, is prevented by s 48A of the Act from applying for another protection visa. Accordingly, the Tribunal is required to consider and assess the claims made by the Applicant by reference to Australia’s interpretation of non-refoulment obligations as provided for in s 36(2) of the Act.

38. As part of his request for revocation, the Applicant claimed that he cannot return to Pakistan because he belongs to a Shi’a minority, that he and his uncle were the subject of attacks by various groups, that he and his family were threatened, that he is the subject of blasphemy charges and that he would be killed upon return to Pakistan. He claimed that he gave sermons at a Shi’a Mosque and that the intelligence agency had come to his home looking for him. The Applicant said the reason he did not previously mention the blasphemy charges against him in Pakistan was because he feared it would affect his visa application. The Applicant said there was a warrant issued for his arrest and there is a First Information Report (FIR) against him in Pakistan. He indicated that he would provide copies of these documents once he gets them translated.[29]  The Applicant provided various news articles about the treatment of people who are accused of blasphemy and terrorist attacks in Pakistan.[30]

    [29] G2, pp 63 – 65.

    [30] G2, 67 – 73 and A8.

39. The Respondent contends that the Applicant has had the opportunity to have his claims assessed by a delegate of the Minister, which was subsequently reviewed by the IAA and found by the then Federal Circuit Court of Australia to be free from error. It was contended that the IAA was in the best position to comprehensively evaluate the Applicant’s protection claims and that unless the Tribunal found that there was significant evidence available now, which was not available in 2019, it would be appropriate for the Tribunal to adopt the findings of the IAA. In relation to the Applicant’s claim to fear being killed due to blasphemy charges, it was contended that the Applicant has not provided corroborative evidence in support this new claim.

1. On review, the Tribunal received submissions from the Applicant contesting the findings made by the delegate who refused to grant him the protection visa and the findings of the IAA.[31] Further submissions were filed by the Applicant in reply to the Respondent’s contention that he had not provided corroborative evidence of his blasphemy charges claims.[32] The Applicant detailed events which he claims led to him being the subject of threats and blasphemy accusations, due to which he had to leave Pakistan.[33]

   [31] A1.

   [32] A2.

   [33] A2.

2. In summary, the Applicant claimed to have given speeches at Shi’a religious gatherings and that following a speech he gave in March 2013 at a gathering at his home, he received a threatening phone call and a letter dated 4 April 2013 from Lashkar-e-Jhangvi (LeJ). He said a fatwa of blasphemy was issued against him on 15 April 2013 by Jamia Rashida. A copy of the threat letter and fatwa were provided to the Tribunal, with translation.[34] The Applicant claimed that he was reported to authorities and that police came to his home to arrest him in April 2013, after which he left Pakistan in a hurry and did not have time to obtain the FIR. He claimed that police came to his home on multiple occasions to arrest him, but he was not there and that his brothers were taken to the police station for investigation and were tortured but later released. The Applicant claimed that when he was leaving Pakistan, he knew that he was accused of blasphemy and that a fatwa had been issued against him. He claimed that his family continue to receive threats and that police have been trying to get information about him.[35]

   [34] A10 and A11.

   [35] A2.

3. The Tribunal formed the view that the claims given by the Applicant as to why he left Pakistan, events in Pakistan and why he fears returning are quite different (and significantly embellished) from those he initially provided in his protection visa application. These concerns were raised with the Applicant at the hearing by the Respondent during cross-examination and by the Tribunal.

4. In oral evidence, the Applicant acknowledged that he had not mentioned the blasphemy charges in his protection visa applications, but he claimed to have raised it with the IAA. The Applicant referred to the IAA decision record which indicates, at paragraph 6, that during a phone call (conducted with the IAA Reviewer on 31 May 2019) the Applicant raised new claims which included that he gave speeches at a Shi’a festival which did not promote sharia law and that when the Sunni community learnt about his views, a Sunni cleric issued a fatwa that he must be killed. The Tribunal observed that there was no reference in the IAA decision about him being the subject of any blasphemy charges in Pakistan. The Applicant said the IAA did not believe his claims because he could not provide supporting information and he was unable to obtain the information because he was in gaol. He said the IAA did not accept that he received the threatening letter and neither the Department nor had the IAA had asked for the letter.

5. The Applicant gave evidence that he was accused of blasphemy in 2013. He said it was difficult for him to remain in Pakistan and face the charges, which were very serious, so he left Pakistan as soon as he could and did not get an opportunity to obtain a copy of the police report.  He said police came to his home to look for him, took his brothers and tortured them. The Applicant said he was charged under s 295B, 295A and 298B (blasphemy related provisions), meaning he would not get bail and no settlement could be agreed to outside court. He said the DFAT Report shows that 70% of blasphemy charges are against Shi’a Muslims and that an accused is often killed whilst held by police before the case goes to court. The Applicant said if he returns to Pakistan, he will have to face the blasphemy charges against him and will get life imprisonment or the death penalty. The Applicant contended that he had raised the blasphemy charges in 2019 even though the full details were not provided.

6. In cross examination, the Applicant said the statement which detailed his protection claims contained errors because of the language barrier, for example, the business was his uncle’s company (not his), which sold confectionary not cosmetics. The Applicant said his English was not good and he did not know the word ‘blasphemy’. The Applicant conceded that he had not initially raised the issue of the fatwa or blasphemy charges but maintained that the claims were raised in 2019 with the IAA Reviewer. The Applicant agreed that his initial claims related to fearing harm in Pakistan because he is a Shi’a Muslim; that Quetta (where he is from) is unsafe for Shi’as; that nowhere in Pakistan is safe for Shi’as; that he was attacked by terrorist groups because he is a Shi’a Muslim and for operating a business; that the same groups have threatened his brothers who are hiding in Islamabad; that he legally departed Pakistan in May 2013 using his own passport; and that he is of adverse interest to terrorist groups and will be targeted upon return to Pakistan.

7. In seeking to explain why he did not raise the issue of the fatwa and blasphemy charges when he was interviewed by the delegate (the first interview), the Applicant said he told the delegate about the threat letters, but he was not believed. The Applicant said he did not mention the fatwa or blasphemy charges during the first interview because he was in gaol, he was not feeling well at the time and prison officers were pressuring him to finish the interview. He said he tried to tell the IAA about the fatwa and blasphemy charges, but they did not listen to him.

8. The Applicant was then referred to the IAA decision which detailed the new claims advanced by him during the phone call with the IAA.[36] These included that the Applicant gave speeches at Shi’a festivals during which he did not promote sharia law which angered the local cleric who issued a fatwa; he publicly condemned the Pakistani government for failing to protect Shi’as and is of adverse interest to them; he cannot live independently of his family due to a loss of vision in his right eye (which was the result of the 2008 attack on him and his uncle), his limited English and lack of other skills; his father has a disability; his uncle has been paralysed since the 2008 attack and it is not safe in Quetta; because of his crime in Australia and illegal departure from Pakistan, the Pakistani authorities will use his personal documents to fabricate a case against him and will kidnap, torture and kill him; and at the time he was arrested (in Australia) his friend picked up his belongings which included a CD of the interview and now his friend knows why he is in gaol and has told family and friends in Quetta and because his father is a strict man and given the nature of the crime, his father will not allow him to live with the family or support him if he returns.

   [36] G2, pp 140 – 141.

9. When asked why he had not raised the new claims at the first interview, the Applicant said he did not understand he could reveal this information and thought he may be deported because of the allegations against him. The Respondent remarked that this appeared different to his earlier explanation that he was under pressure because of his situation (being in gaol), to which the Applicant said he did not know the consequences of revealing the charges against him in Pakistan. When asked why he made the new claims to the IAA, the Applicant said he made a mistake by not telling the delegate that the reasons he left Pakistan was not just because he was Shi’a but because of the charges against him for insulting religion.

10. When asked about his new claim to the IAA about departing Pakistan illegally,[37] the Applicant said his visa to Thailand was fake but that his passport was genuine. When asked about his new claim to the IAA about giving speeches at Shi’a festivals and the fatwa and why, given they all related to events prior to the delegate’s decision, he did not mention them, the Applicant said he was in gaol and going through a lot of stress. The Respondent noted that the IAA had listened to the first interview and that the delegate, towards the end of the interview, paused the proceedings and advised him that this was his opportunity to reflect on the interview, consider what had been discussed and ensure that he raised everything he wished to say.[38] When asked why he did not take the opportunity to raise the fatwa or speeches with the delegate, the Applicant said the delegate was not interested in his story and did not ask him any details. He said he raised it with IAA, who had the responsibility of asking him about the details, but he was not asked to give any detail, nor was he asked about what supporting documents he could provide.  

    [37] G2, p 142

    [38] G2, p 141

11. The Respondent put to the Applicant that he made no mention of the criminal charges for blasphemy against him in Pakistan. The Applicant said a fatwa was issued, someone took it to the police station and a report was lodged against him. He said the police came to his house to arrest him, but they took his father and investigated him, and he later found out that the allegations for blasphemy were because of the speeches he made. When it was put to him that he had not raised the criminal charges of blasphemy with the delegate or the IAA, the Applicant said in 2017 he just provided the basic details, he understood he could provide further details later, but the IAA did not listen to him and did not ask for details.

12. The Respondent asked the Applicant about the threat letter and the fatwa document, which he provided (for the very first time) to the Tribunal in connection with his review of the decision refusing to revoke the cancellation of his visa, and why he had not provided those documents earlier. The Applicant said the IAA did not listen to him and he was not asked to provide the documents. He said he told the IAA that he could not provide documents because he was in gaol but would do so when released. When asked why he did not provide those documents to the Department in January 2022 when he sought revocation, the Applicant said he thought he could only provide information about his character and that he was not asked to provide documents. He said he provided the documents and further information about the blasphemy charges because the issue was raised by the Respondent (in the SFIC) and so he thought he could now provide them. He said the only document he has not been able to provide is the FIR, which he could not obtain because he had to leave Pakistan urgently.

13. In considering whether non-refoulment obligations are owed to the Applicant, the Tribunal has had regard to the Applicant’s written claims and statements, including those provided to the Department and the Tribunal in connection with this review. It has also had regard to his oral evidence at the hearing and to current country information on Pakistan.[39] The Tribunal also had regard to the earlier decisions made the Department and the IAA in respect of the Applicant’s claims for protection.

    [39] DFAT Country Information Report, Pakistan, 25 January 2022.

14. The Applicant in this case has had his claims for protection (other than those related to the blasphemy charges) assessed by a delegate of the Minister and the IAA on review and was found not have engaged Australia’s protection obligations. The Applicant’s claims, including his new claims, are comprehensively set out in the IAA decision record[40] and are summarised above at paragraphs 118 and 120.

    [40] G2 pp 139 – 151.

15. As part of its own assessment of the Applicant’s claims, the Tribunal has had regard to the findings and reasons of the IAA. In summary, the IAA accepted that:

    ·the Applicant is a practising Shi’a Muslim from Quetta, Balochistan Province.

    ·the Applicant’s father had a close relationship with the Imam at their mosque.

    ·the Applicant's family home is located in a Shi’a neighbourhood of Quetta.

    ·the Applicant participated in Shi’a religious ceremonies, which left scars on his back.

    ·the Applicant's attendance at Shi’a mosques and public ceremonies would identify him as Shi’a.

    ·in 2008, threat letters were thrown into the Applicant's car and his family received various threats, to the extent that they were identified as Shi’a Muslims who reside in a Shi’a neighbourhood where others received these letters.

    ·the applicant and his uncle were shot at in their car in 2008 as part of general unrest, resulting in the applicant sustaining a serious eye injury.

16. The IAA did not accept, for reasons discussed further below, that:

    ·the Applicant was a businessman or a shop owner.

    ·the Applicant was the intended target of the 2008 shooting, that he received a specific threat (including a letter addressed to him from LeJ) of any type following this incident, that his uncle’s business had closed as a result of this incident or that he was unable or unwilling to leave his home in Quetta due to the activities of terrorist groups.

    ·there had ever been an attack on the Applicant's family home in Quetta.

    ·the Applicant's sister was living with relatives due to the attack on the family home in Quetta.

    ·the Applicant's brothers were hiding in Islamabad because of terrorist groups calling to look for the Applicant or his brothers.

    ·that spies continue to visit the Applicant's family home and would inform the terrorist groups if he returned to Pakistan.

17. Having regard to all the evidence before it, the Tribunal agrees with the IAA findings (and its reasons) regarding the claims that were accepted, which are set out in paragraph 127 above. The Tribunal will consider, further below, these accepted claims by reference to the current Country information before it.

18. In relation to the claims that were not accepted by the IAA, the Tribunal is satisfied, based on the reasons given, why these claims were not accepted. The IAA considered that the Applicant had not provided credible or consistent evidence about his claim to be a business owner, to have received targeted threats from terrorist groups, that his family had received further threats, that his siblings had to leave the family home, and that spies would pass on information about him to the terrorist groups.[41] The IAA also considered the Applicant’s responses to questions asked at the departmental interview regarding the claim of recent threats received by his family to be vague and unconvincing.[42]

    [41] Ibid at paragraphs 22, 25 – 32.

    [42] Ibid at paragraph 29.

19. In relation to the Applicant’s new claims about the speeches he had given, the fatwa against him, and he and his family being of adverse interest to the authorities in Pakistan, the IAA noted that they appear to have been based on events which took place prior to the delegate’s decision and found that the Applicant had not satisfactorily explained why he had not raised them with the delegate. The IAA listened to the recording of the departmental interview (which was conducted by phone with the Applicant while he was in custody) and acknowledged that the Applicant said he was not feeling well because he was not in a good place to have the interview, but nevertheless indicated he was willing to proceed. The IAA also observed that the delegate paused the interview and advised the Applicant to reflect on what had been discussed and ensure that he had raised everything he wished to say, and that when the recording resumed, the Applicant informed the delegate that he had nothing further to add, which was reconfirmed by the delegate.[43]

    [43] Ibid at paragraphs 8 – 9.

20. In addition to the concern that the Applicant had not raised the new claims earlier, which the IAA found, in part, contradicts evidence given at the departmental interview, the IAA noted that the Applicant had provided minimal details about them, which cast doubt over their believability.

21. The IAA considered the new claim that the Applicant’s friend had a CD of the departmental interview and had told family and friends in Quetta about the reason he is in custody. The IAA noted that the Applicant had advised that his friend obtained the CD at the time of the Applicant’s incarceration. As the Applicant was arrested on 6 July 2018, which was some nine months prior to the departmental interview (which occurred on 4 April 2019) the IAA found this new claim to be inherently unbelievable. The IAA also considered the Applicant’s later claim to have departed Pakistan illegally and found, for reasons given, the claim to be inherently unbelievable.[44]

    [44] Ibid at paragraph 13.

22. It was noted in the IAA decision that the Applicant claimed to have documents to corroborate his protection claims, those being newspaper cuttings from 2008 regarding the incident in which he was shot and documentary evidence from 2013 indicating his father attempted to lodge a police report about the attempt to kidnap the Applicant. The Applicant informed the IAA that could not provide the documents because he does not have access to the Internet or email at the correctional centre. The Tribunal considers it significant that the Applicant did not indicate that he also has the fatwa document, which he recently provided to the Tribunal. When this concern was raised with the Applicant at the hearing, he said the IAA was not interested in listening to him, had not asked for details, nor asked him what documents he could provide. Firstly, the Tribunal considers it is the responsibility of the Applicant to present evidence and provide sufficient particulars in support of his claims. Secondly, the Tribunal is satisfied that the Applicant was given a fair opportunity, by the delegate and by the IAA, to provide evidence in support of his claims. The Tribunal considers that if a fatwa was issued against the Applicant in 2013, he would have made some mention of that document to the IAA. The fact that he had not done so, strongly suggests that the Applicant’s claim of being subject to a fatwa in Pakistan for insulting religion is not true.

23. The Tribunal has considered the Applicant’s complaints regarding the delegate’s decision and the IAA decision as set out in his submissions[45] to the Tribunal and in his oral evidence at the hearing. The Applicant essentially disagreed with the reasoning of the delegate and suggested that if he had mentioned the fatwa and blasphemy charges, that the delegate would have understood and accepted his claims about the incidents of harm he had experienced in Pakistan. The Applicant also complained that his claims contained some errors and did not include sufficient detail due to a language barrier and that he was in custody at the time of the departmental interview. The Applicant also disagreed with the reasons given by the IAA as to why his claims were not accepted and suggested that the IAA was not interested in listening to him, had not asked about his claims, or given him an opportunity to provide documents to corroborate his claims.

    [45] A1

24. The Tribunal notes that some of the complaints made by the Applicant regarding the IAA decision, including that he was not given the opportunity by the IAA to provide evidence in support of his protection claims, were considered by the Court on judicial review of the IAA decision. Relevantly, the Court found that there had been no failure of procedural fairness or legal unreasonableness on the part of the IAA. The Court considered that the Applicant had ample time and opportunity, before he was on remand, to produce the documents that he wanted to provide to support, or corroborate, his claims. The Court acknowledged that the opportunity may have been limited due to the Applicant being on remand but noted that the Applicant had some assistance from Refugee Advice and Casework Service (RACS), who were able to communicate with him while he was on remand, and to communicate with the IAA on his behalf during that period.

1. The Tribunal has had regard to the reasons given by the IAA as why it did not accept some of the Applicant’s claims (as set out in paragraph 130 above) and its consideration of the Applicant’s new claims (as set out in paragraphs 131 - 133 above) and why the IAA was not satisfied that exceptional circumstances existed to justify consideration of the new claims. The Tribunal considered the IAA’s reasons to be sound and highly persuasive. The Tribunal also considers significant that the IAA decision was found to be free from legal error. The Tribunal is satisfied that the IAA has duly considered the claims made by the Applicant for protection and gives significant weight to its findings. For these reasons, the Tribunal adopts the findings of the IAA. As noted earlier, the Tribunal will consider the claims that were accepted by the IAA in light of the current country information before it. Before doing this, however, the Tribunals will consider the Applicant’s most recent claim (which was not considered by the delegate or the IAA) that he fears returning to Pakistan because of blasphemy charges against him.

2. Firstly, the Tribunal considers implausible that the reason the Applicant did not previously mention the blasphemy charges against him in Pakistan was because he feared it would adversely affect his visa application, given he now claims that this was the main reason he had to urgently flee Pakistan. The Applicant suggested that he had raised the claim about blasphemy with the IAA because he had mentioned giving speeches which led to a fatwa being issued against him, upon which blasphemy charges were instigated by police. The Tribunal considers if this sequence of events were true, and this was the main reason the Applicant fled Pakistan, then he would have made some mention of this in his initial claims for protection. The Applicant made no mention of the fatwa or blasphemy charges in his initial application or at the departmental interview. While the claims of making speeches and the fatwa were raised as new claims by the Applicant with IAA (which were not believed), no mention had been made of the claimed blasphemy charges against him. The Tribunal considers that the claim about him being the subject of blasphemy charges in Pakistan were raised by him for the very first time in his request for revocation of the cancellation of his Bridging E visa. The Applicant has not provided credible evidence, and the Tribunal does not accept his contention, that the claim relating to blasphemy charges against him in Pakistan were raised with the IAA.

3. The Tribunal has also considered the Applicant’s contention that ‘mistakes’ in his initial statement were made due to a language barrier because at the time his English was not good, that he did not even know the word for ‘blasphemy’, and that he was told that the statement would contain only his basic claims, about which he could provide more information later. The Tribunal acknowledges that in the initial statement of claims for protection, which was signed by Applicant on 22 June 2017, it was indicated that the Applicant would provide further information in relation to his claims for protection during the interview.[46] The Tribunal notes, however, that the statement makes no mention at all of any claims relating to speeches given (during which the Applicant claims to have insulted religion), a fatwa issued against him or the claimed blasphemy charges against him in Pakistan.    

   [46] A7.

4. In relation to the Applicant’s claim that he did not know the word ‘blasphemy’, the Tribunal acknowledges that the Applicant was not assisted by an accredited interpreter, however, it was indicated that the content of the statement of the Applicant’s claims for protection was read back to him with the assistance of a bilingual volunteer and that the applicant agreed with its content.[47] Given the details provided in relation to other claims made by the Applicant in his statement, and the fact that he had the assistance of a bilingual volunteer, the Tribunal does not accept as credible that the Applicant did not mention the charges against him in Pakistan because he did not know the word ‘blasphemy’ in his statement. The Tribunal is not satisfied that a language barrier or not having the assistance of an accredited interpreter adequately explains why the Applicant failed to raise the significant claim of being the subject of blasphemy charges in Pakistan.

   [47] Ibid at p 5

5. The Tribunal has also had regard to the Applicant’s explanation that the reason he did not mention the blasphemy charges to the IAA during the interview of 31 May 2019 was because the IAA did not believe him and that he could not provide supporting documents because he was in custody. The Tribunal considers that the Applicant was given an opportunity, which he took, to make submissions as to why he disagreed with the delegate’s decision, including any claim or matter which he believed had not been considered during the interview with the IAA.[48] The Applicant took the opportunity to raise new claims, but made no mention of being the subject of blasphemy charges.

   [48] G2, p140.

6. Furthermore, the documents he informed the IAA he had (but could not provide due to being in custody) were newspaper clippings from the 2008 attack and his father’s attempt to lodge a report regarding the attempted kidnapping of the Applicant. The Applicant made no mention to the IAA of the claimed fatwa document. This leads the Tribunal to conclude that the fatwa document provided by the Applicant to the Tribunal is non-genuine. The Tribunal has also had regard to the letter dated 4 April 2013, which the Applicant claimed was addressed to him from the LeJ, in which the Applicant was threatened with death because of his religious views and that LeJ have a fatwa from religious scholars declaring that he deserves to be killed. Firstly, the Tribunal considers it of some concern that the Applicant had not provided this letter with his protection visa application. Secondly, the Applicant had not indicated to the IAA that this was one of the documents he wished to provide to corroborate his claims for protection. Thirdly, the letter pre-dates the date of the fatwa (which was purportedly issued on 15 April 2013) by 11 days, so the information contained in the letter about there being a fatwa condemning the Applicant is inherently inconsistent with the date the fatwa was purportedly issued. For these reasons, the Tribunal considers that the threat letter provided by the Applicant to the Tribunal is also non-genuine.

7. The Tribunal has also had regard to the Applicant’s evidence that the reason he did not provide the documents (the threat letter and fatwa) to the Department with his request for revocation of the visa cancellation was because he thought he could only provide documents related to his character and that the reason he provided them to the Tribunal was because of the matters raised by the Respondent (in the SFIC). The Tribunal notes that one of the reasons given by the Applicant in his initial request for revocation was that he feared returning to Pakistan because of blasphemy charges against him. The Applicant provided numerous documents to the Department in support of his revocation request, including numerous articles about the situation in Pakistan, and indicated that he would provide a copy of the arrest warrant and FIR issued against him once he got them translated. In the circumstances, the Tribunal does not find credible that, in light of such claims and the nature of other documents provided or what was indicated would be provided, that the Applicant genuinely believed he could only provide documents relevant to his character.

8. The Tribunal accepts that the documents (the threat letter and the fatwa) were provided to the Tribunal in response to the matters raised by the Respondent (in the SFIC), which raised concerns about the belated blasphemy claims raised by the Applicant. The Tribunal, however, considers that if these documents had existed since 2013 (as suggested on the dates of the documents) then they would have been provided by the Applicant much earlier than they were. The Tribunal considers that these documents were contrived for the purpose of countering the concerns raised by the Respondent.

9. The Tribunal considers that the Applicant’s claims about facing blasphemy charges in Pakistan are a recent invention (or significant embellishment) of his claim to fear harm in Pakistan on account of his religion. For all the above reasons, the Tribunal does not accept that the Applicant is the subject of blasphemy charges in Pakistan or that he will experience serious or significant harm on this basis if he is returned to Pakistan.

10. Having regard to the evidence before it, including the findings made by the IAA, the Tribunal is not satisfied that the Applicant, other than being a Shi’a Muslim, is a person who has a profile of interest to anti-Shi’a/Sunni terrorist groups in Pakistan or that he is a person of interest to the Pakistani authorities.

11. The Department and the IAA also considered whether the Applicant would face harm in Pakistan as a returning asylum seeker/returnee from a western country and as a person with a conviction in Australia. The IAA considered country information from the February 2019 DFAT Country Information Report on Pakistan, which the Tribunal notes is identical to information in the most recent Country Information Report (of January 2022) and indicates that those who depart Pakistan legally on valid travel documents (irrespective of how they entered destination countries) and return voluntarily with valid travel documents are generally processed like any other citizen. However, it also indicates those who are returned involuntarily or on emergency travel documents are likely to attract the attention of authorities upon arrival. The Report indicates that Immigration officials will interview failed returnees and release them if their exit was deemed to be legal.[49]

    [49] DFAT Country Information Report on Pakistan, 25 January 2022 at 5.28

12. The Report also indicates that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed offences while abroad. Those wanted for a crime in Pakistan or who have committed a serious offence abroad may be arrested and held on remand or required to report regularly to police.[50] The Report also indicates that returnees to Pakistan do not face a significant risk of societal violence or discrimination because of their attempt to migrate, or because they have lived in a western country.[51]

    [50] Ibid at 5.29

    [51] Ibid at 5.31.

13. The Applicant’s evidence is that he departed Pakistan using his own passport. Furthermore, as found above, the Applicant is not the subject of blasphemy charges in Pakistan and there is no evidence before the Tribunal which suggests that the Applicant is wanted for a crime in Pakistan. The Applicant has, however, been convicted of a criminal offence in Australia for which he was sentenced to one year and six months of imprisonment. Country information relied on by the delegate indicates that Pakistan's laws prevent a person who has been tried and either convicted or acquitted of an offence (including criminal) in a court of competent jurisdiction, while such conviction or acquittal remains in force, from being prosecuted again for the same offence, or on the same facts for another possible offence.[52] The delegate indicated that no information was found which suggests Pakistani citizens have been re-prosecuted for actions for which they have received criminal convictions and served penalties overseas. It was further noted that no reports have been located which suggest any mistreatment by the authorities in Pakistan of citizens returning from overseas with convictions completed in a foreign country. So even if the Applicant is involuntarily returned to Pakistan, the Tribunal is not satisfied, based on the information before it, that he will experience serious or significant harm on account of his conviction in Australia. The Tribunal is also not satisfied that the Applicant will experience serious or significant harm as a failed asylum seeker/returnee from the west if he is returned to Pakistan.

    [52] G2, p 129 – 130, including footnotes 60 and 61.

14. At the hearing, the Applicant gave evidence that he communicates with his parents in Pakistan. When asked whether he has told has parents about his conviction in Australia, including the nature of the offence of which he was convicted, the Applicant said he told his father but not his mother as she has mental health issues. When asked about his father’s reaction, the Applicant said his father was angry at first and did not speak to him for a while, however, after reproaching him for he has done, they are on speaking terms again.

15. When asked at the hearing where he would live if he had to return to Pakistan, the Applicant refused to contemplate the possibility, stating that he cannot return to Pakistan. The Tribunal considers that if the Applicant were to be removed to Pakistan, he would likely to return to live with his family in Quetta. The Tribunal formed this view on the basis of the evidence given by the Applicant (to the IAA) as to why he could not live independently from his family and relocate to any other part of Pakistan.

16. Having regard to the above, and the findings made by the IAA, which the Tribunal has adopted, the Tribunal accepts that the Applicant is practising Shi’a Muslim from Quetta, Balochistan Province. It also accepts that the Applicant, if returned to Pakistan, would continue to practise his faith by attending the mosque and participating in Shi’a religious ceremonies.

17. In determining whether the Applicant faces a real change of suffering serious or significant harm on account of being a practising Shi’a if he is returned to Pakistan (Quetta), the Tribunal has had regard to the most current DFAT Report on Pakistan.[53] It has also had regard to the news articles, reports and information submitted by the Applicant.[54] At the time the IAA made its assessment, the most current DFAT report was dated 22 February 2019. The current report is dated 25 January 2022. While much of the country information remains the same, the 2022 DFAT Report indicates a slight deterioration in the security situation in Pakistan due to factors such as domestic politics, religious extremism, ethnic and sectarian conflict, economic hardship, and the situation in Afghanistan. It also indicates an increase in violence in some parts of Pakistan.[55] This is consistent with the news articles provided by the Applicant which indicates an increase in violence in Pakistan in 2020 and 2021.

    [53] DFAT Country Information Report, Pakistan, 25 January 2022.

    [54] G2, 84 – 108, A1 and A8.

    [55] DFAT Country Information Report, Pakistan, 25 January 2022 at 2.34 – 2.35.

18. Notwithstanding the above, the 2022 DFAT Report indicates a consistent downward trend in the incidents of violence in Pakistan since 2013. It cites information from the Pak Institute for Peace Studies (PIPS) which states that attacks by extremists/terrorists fell from 1,717 attacks (resulting in 2,451 deaths) in 2013, to a low of 220 attacks (resulting in 146 deaths) in 2020, rising slightly to 200 attacks (resulting in 293 deaths) in 2021. It was indicated that the main targets were security forces and government representatives. However, extremist groups continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, and there were some attacks in Punjab and Sindh.[56]

    [56] Ibid at 2.36.

19. The 2022 DFAT Report indicates that while the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistani security forces continue to conduct operations against groups which attack its interests and in response to specific threats and incidents. There has been an increase in these operations commensurate with the recent increase in terrorist attacks.

20. In relation to terrorist attacks on the Shi’a community in Pakistan, the 2022 DFAT Report indicates that the frequency of terrorist attacks on Shi’a individuals, places of worship and other sites has steadily declined since 2013. The Report notes that three people were killed and 50 injured during bombing on a Shi’a procession in Bahawalnagar in Punjab in 2021 while five Shi’a were killed and injured in 14 terrorist attacks in 2020 (not including attacks targeting Shi’a Hazaras). This is in stark contrast with 471 deaths in 2013. Country information indicates that the reduction is due to the overall improvement in the security situation in Pakistan since 2014 and increased police security for Shi’a places of worship and processions.

21. In relation to recent incidents in Quetta and the State of Balochistan, the 2022 DFAT Report records the IS bombing of a mosque in Quetta in January 2020 that killed 15 people and an attack in January 2021 that killed 11 Hazara miners in Balochistan.

22. The 2022 DFAT Report indicates that an increase in religious intolerance had increased anti-Shi’a sentiment and that tensions often flare during Shi’a religious celebrations such as Muharram and in 2020 thousands of Sunni protestors took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. The leader of the TLP openly threatened beheadings for Shi’a blasphemers. According to the Report, there were targeted killings in multiple cities in 2020. Authorities have, however, attempted to curb sectarian problems during Muharram by taking measures such as banning firebrand Sunni and Shi’a clerics from leaving home and by cutting mobile phone services in major cities during processions.[57]

    [57] Ibid at 3.59.

23. The 2022 DFAT Report notes, as highlighted by the Applicant in his submissions, that 70% of blasphemy cases in Pakistan involved Shi’a. The Report cites data from the Centre for Social Justice (CSJ) which reported 200 blasphemy cases in 2020, which was noted to be an all-time high. It was indicated that religious minorities were disproportionately affected: in 70 per cent of the cases the accused was Shi’a, 20 per cent Ahmadi and 3.5 per cent Christian. It was noted that false accusations of blasphemy are used to settle personal disputes.[58] The report also states that over 40 Shi’a were charged with blasphemy following religious processions in 2020 and that some lower court convictions for blasphemy were overturned by higher courts.

    [58] Ibid at 3.34

24. Overall, the DFAT report indicates that Shi’as faced a moderate risk of sectarian violence and societal discrimination in the form of anti-Shi’a protests and community violence, but also notes that the situation has improved considerably in recent years.[59]

    [59] Ibid at 3.61

25. The Tribunal notes that the incidents of violence (and the resulting deaths and injuries) against the Shi’a community must be considered in context of the fact that Pakistan is home to the second largest Shi’a population (after Iran) and that 20 – 40 million Shi’a (20% of the population) live throughout Pakistan. Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties.[60]

    [60] Ibid at 3.57

26. In considering the current country information before it, the Tribunal acknowledges that sectarian violence (and resulting deaths and injuries) continues to occur in Pakistan, and that Shi’a Muslims have been targeted, however, the current information before the Tribunal clearly indicates that such incidents have significantly declined since 2014 following the anti-terrorist campaign launched by the government. While there has been a slight increase in recent attacks, the incidents of violence (including those against the Shi’a community) remains relatively low in most parts of Pakistan, with only a few being recorded in Quetta and the State of Balochistan.

1. The evidence, in the Tribunal’s view, does not indicate that incidents of violence by anti-Shi’a/Sunni terrorist or extremist groups or accusations of blasphemy are so frequent or widespread such that individuals of the Shi’a faith would face a real chance of being killed or injured in such an attack or being the subject of blasphemy accusations. The Tribunal considers that the chance of the Applicant being caught up in an anti-Shi’a/terrorist attack or being accused of blasphemy is extremely remote. For these reasons, the Tribunal not satisfied that there is a real chance that the applicant would face serious or significant harm on account of his Shi’a faith if he is returned to Pakistan now or in the reasonably foreseeable future.

2. The Applicant’s claim that he and his uncle were attacked in 2008, during which the Applicant suffered an eye injury, which was accepted by the IAA appears consistent with country information which indicates that Sunni-Shi’a sectarian violence was at its worst between 2007 and 2013. However, as indicated above, the security situation in Pakistan, including Quetta, has significantly improved since then.

3. The Tribunal has also had regard to the Applicant’s claim that he experienced domestic violence and sexual abuse as a child, and to the country information provided about domestic violence, sexual abuse, and exploitation of children in Pakistan.[61]  The Tribunal accepts that the Applicant experienced domestic violence as a child, including being beaten by his father.[62] In relation to the Applicant’s claim of sexual abuse, the Tribunal considers that the Applicant has given inconsistent evidence and embellished this claim over time. In submissions to the Tribunal the Applicant said when he was 12 years old he was abused by a relative who used to torture and sexually abuse him every time and threatened him if he dared to say anything to anyone.[63] This contrasts with the evidence in the sentencing remarks which indicates the Applicant experienced an episode of sexual abuse, as a 12 year old, which seemed to have been limited to being touched on his private parts on an occasion by a friend of the family.[64] The recent assessment report by the Psychologist indicates that following the initial assessment, the applicant contacted the assessor and reported that when he was 14 years old he was sexually assaulted by an older male staying with the family as a guest and that the man touched his genitals. When the inconsistencies in the evidence about his age and the extent of the abuse was discussed with the Applicant at the hearing, he said he suffered the abuse from the age of 12 until he was 14. The Tribunal considered the Applicant’s response to be another example of him significantly embellishing his claims over time. The Tribunal considers that the if the Applicant had been sexually abused over such a long period of time, this would have likely been mentioned in the sentencing remarks and detailed in the psychologist’s report. The Tribunal does not accept that the Applicant experienced sexual abuse as a child for over two years. The Tribunal formed the view that the Applicant has exaggerated this claim. The Tribunal accepts that the applicant experienced sexual abuse (when he was either 12 or 14) in Pakistan, but considers that this was limited to a single episode during which a friend of the family touched his genitals.

   [61] A2, in which the Applicant refers to the 2022 DFAT Country Information Report on Pakistan at 3.106.

   [62] A2 and A4.

   [63] A2.

   [64] G2, p39.

4. The Tribunal notes that the Applicant’s experience of violence at the hands of his father and the episode of sexual abuse occurred when the Applicant was a child. The Applicant is now 33 years of age and is unlikely to experience violence or abuse, as occurred in the past, at the hands of his father or family friends in Pakistan. For these reasons, the Tribunal is not satisfied that there is a real chance that the applicant would face serious or significant harm on account of his childhood experiences of violence and/or abuse if he is returns to Pakistan now or in the reasonably foreseeable future.

5. The Tribunal has also had regard to the psychologist report and summary of treatment report which indicate that the Applicant suffers from PTSD, depression and anxiety for which he requires ongoing psychological treatment. The reports indicate that at the time of assessment the Applicant did not experience suicidal ideations, however, he had previously experienced suicidal ideations and had self-harmed in 2022.[65] The Applicant was considered a low-moderate/moderate risk of committing suicide.[66] The Country information indicates that while mental health disorders are common in Pakistan, options for treatment are limited, and that Pakistan has fewer than 500 psychiatrists serving a population of 200 million. The Report indicates that more than 90 per cent of people with common mental health disorders go untreated.[67]

   [65] A4 and A5.

   [66] Ibid

   [67] DFAT Country Information Report, 25 January 2022 at 2.14.

6. The evidence before the Tribunal indicates that the applicant suffers from various mental health conditions and there is a low-moderate risk of Applicant committing suicide. The Tribunal acknowledges, in light of the country information, the difficulties the Applicant may face in receiving mental health treatment given the limited mental health services available in Pakistan if he is returned there. In saying that, the Tribunal notes that the Applicant’s mother, who suffers from mental illness (including symptoms of schizophrenia), appears to be receiving treatment by way of regular check-ups at Al-Shafa Hospital in Quetta.[68] There is no evidence before the Tribunal which suggests that the Applicant would not be able to obtain mental health care from the same hospital that treats his mother.

   [68] A9.

7. The Tribunal has considered these circumstances again when having regard to the impediments faced by the Applicant if he is removed to Pakistan, however, for the purposes of assessing non-refoulment obligations, the Tribunal considers that any harm that may be suffered by the Applicant on account of his mental health (including the risk of self-harm) would not engage Australia’s non-refoulment obligation because it would not involve persecutory conduct (amounting to serious harm) or significant harm intentionally inflicted by a third party. There is also no evidence before the Tribunal which suggests that mental health treatment would be withheld from the Applicant for a persecutory reason. For these reasons, the Tribunal is not satisfied that the evidence pertaining to the Applicant’s mental health establishes that the Applicant is a person in respect of whom Australia has non-refoulment obligations.

8. The Applicant has also provided excerpts from country information relating to the current economic and political situation in Pakistan, as well as excerpts relating to the healthcare system.[69] The Tribunal understood from the Applicant’s submissions, that these were further reasons why he did not want to return to Pakistan. The Tribunal accepts based on country information that Pakistan’s economy is facing significant challenges, with rising inflation, fiscal deficits and a high rate of unemployment, which has been exacerbated by political tensions and power struggles. The information also indicates that Pakistan’s healthcare system is under strain given the poor state of healthcare infrastructure and lack of investment in health. The Tribunal has considered these factors further below when considering impediments if removed, however, for the purpose of assessing whether the Applicant is owed non-refoulment obligations, the Tribunal considers that the poor state of Pakistan’s economy, political tensions, and poor healthcare facilities, and any harm that may arise because of these conditions, is faced by the general population of Pakistan and would not be faced by the Applicant personally.[70]

   [69] A1 and A2, and R2.

   [70] Migration Act s 36(2B)(c)

9. Having carefully considered the Applicant’s claims, as discussed above, the Tribunal is not satisfied that the Applicant is person in respect of whom Australia has non-refoulment obligations.

10. As the Tribunal is not satisfied that non-refoulment obligations are owed to the Applicant, the consequences of a decision not to revoke the cancellation of the Bridging E visa, as noted above, is that the Applicant will be subject to removal from Australia as soon as reasonably practicable. A further consequence of the decision, is that the Applicant will be precluded from returning to Australia.[71]

    [71] Migration Regulations 1994 (Cth) special return criteria 5001

11. The Applicant has insisted that he does not want to return to Pakistan, that he cannot return to Pakistan because of the charges against him and that he would rather remain in detention in Australia than be removed to Pakistan. The Tribunal was not satisfied, for reasons discussed above, that the Applicant is the subject of blasphemy charges in Pakistan and concluded that he is not a person in respect of whom Australia has non-refoulment obligations. However, it is patently clear on his evidence that removal from Australia to Pakistan, for the Applicant, is a serious adverse consequence of a non-revocation decision. In addition, the Applicant will be permanently excluded from Australia.

    Conclusion on legal consequences of the cancellation

12. Given the significant adverse consequences that would ensue from a decision not to revoke the cancellation of the Applicant’s visa, the Tribunal considers that the legal consequences of the decision, in the circumstances of the Applicant, weigh moderately in favour of revocation.

    (b)  Extent of impediments if removed

13. The Tribunal must also consider the extent of any impediments the Applicant will face if removed from Australia to his home country of Pakistan. The Tribunal is required to make this assessment having regard to the Applicant’s age and health; whether there are substantial language and cultural barriers; and any social, medical and/or economic support available to them in that country.

14. When asked what impediments he may face if he returns to Pakistan, the Applicant simply stated that he could not return to Pakistan. In light of the Tribunal’s finding that the Applicant may be forcibly removed to Pakistan, it is appropriate for the Tribunal to consider the impediments that may be faced by the Applicant based on the available evidence before it.

15. The Applicant is a 33-year-old, which the Tribunal considers to be relatively young. The Applicant has not indicated that he currently suffers from any physical health issues. The Tribunal, however, accepts that the Applicant suffers from PTSD, depression and anxiety.[72] His mental health condition requires ongoing psychological treatment.[73] Country information indicates that mental health treatment in Pakistan is limited and the Tribunal accepts that the Applicant may face some difficulties receiving adequate treatment for his mental health.[74] As noted above, however, it appears that the Applicant’s mother, who also suffers from mental health issues, has been able to receive some treatment from a hospital in Quetta. Acknowledging that the quality of the mental health treatment in Pakistan may not be at the same level as what the Applicant has been receiving in Australia, the evidence suggests that the Applicant may still be able to receive some mental health treatment in Pakistan.

    [72] A4 and A5.

    [73] A4 and A5.

    [74] DFAT Country Information Report 25 January 2022 at 2.10 – 2.16.

16. The Applicant was born and lived in Pakistan until he was 22 years of age. The Tribunal accordingly considers that he will not face any language or cultural barriers if he returns to Pakistan. The Tribunal notes that the Applicant’s parents and sisters reside in Pakistan. Even though the Applicant insists that cannot return to Pakistan, the Tribunal considers that if the Applicant is removed to Pakistan, he will likely live in Quetta with his family. The Tribunal accepts that the Applicant’s father has a disability and that his mother suffers from a mental illness. The Applicant gave evidence that he is in regular contact with his parents in Pakistan. While the Applicant is likely to receive emotional support from his family in Pakistan if he returns, it is unclear whether they will be able to provide him with financial support.

17. The Applicant has not completed any tertiary qualifications, though he has completed several short courses in Australia. It is unclear whether any of these courses would assist him with employment in Pakistan. The Applicant, however, has experience doing administrative tasks (recording bills and stock) in his uncle’s business in Pakistan. He also has four years of work experience in Australia, including a variety of customer service jobs, construction work and halal slaughtering. He also has a very good command of the English language. The Applicant’s work experience and English language skills are likely to assist him in finding employment upon return to Pakistan.

18. The Tribunal also acknowledges that the economic conditions and current political tensions in Pakistan may make it difficult, initially, for the Applicant to adjust and re-establish himself. However, given the Applicant’s young age, work experience, English language skills and family support, the Tribunal considers that the Applicant will be able to maintain a basic standard of living, in the context of what is generally available to other citizens in Pakistan.

19. In considering the evidence overall, the Tribunal concludes that the extent of the impediments if removed weigh moderately in favour of revocation.

    (c)  Impact on victims

20. The Tribunal is required to consider the impact of a s 501 decision on members of the Australian community, including victims of the non- citizen’s conduct where information in this regard is available. There is no evidence before the Tribunal relevant to this consideration. This consideration is therefore neutral.

    (d)Impact on Australian business interests

21. The Tribunal is required to consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where an adverse decision would significantly compromise the delivery of a major project or important service.

22. There is no information before the Tribunal regarding the impact of the decision on Australian business interests. This consideration is therefore neutral.

    CONCLUSION

23. As found above, the Applicant does not pass the character test. In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction.

24. The Tribunal has found, after considering all the relevant evidence and information before it, that there is a medium-low risk of the Applicant reoffending or engaging in sexually based offences (internet grooming) involving a child. His criminal offences were found to be very serious, with the risk of psychological harm to a young victim, should the offending be repeated, potentially being very serious and devastating. The primary consideration of protection of the Australian community therefore weighed very heavily against revocation. The Applicant’s circumstances are not such that the Australian community would afford a higher level of tolerance of his criminal conduct and, as such, the expectation of the Australian community, particularly given the nature of his offending, is that the Applicant should not be allowed to remain in Australia. The primary consideration of the expectation of the Australia community weighed very heavily against revocation.

25. The Tribunal found, after considering the evidence overall, that the strength, nature, and duration of the Applicant’s ties to Australia weighed slightly in favour of revocation. Other considerations of relevance are the legal consequences of the decision, which weighed moderately in favour of revocation and the extent of the impediments if removed, which also weighed moderately in favour of revocation.

26. Having weighed all relevant considerations individually and cumulatively, the Tribunal is not satisfied that the primary considerations of the Strength, nature, and duration of ties to Australia and the other considerations of legal consequences of the decision and impediments if removed to Pakistan outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community. For these reasons, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.

    DECISION

27. The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 189 (one hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Skaros

........................................................................

Associate

Dated: 4 October 2023

Date(s) of hearing:	18 September 2023
Applicant:	In person
Solicitors for the Respondent:	Mr Ingmar Duldig