DGBK and Minister for Home Affairs (Migration) - [2019] AATA 243

DGBK and Minister for Home Affairs (Migration) [2019] AATA 243 (27 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7392
Re:DGBK
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:27 February 2019
Place:Melbourne

The Tribunal affirms the decision under review.
...................[sgd]............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Afghanistan – Class XA Subclass 866 Protection visa – sexually-based offences against multiple minor children – failure to pass good character test – Ministerial Direction No. 65 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Criminal Code Act 1995 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Regulations 1994 (Cth)
Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Crimes Act 1958 (Vic)
Sex Offenders Registration Act 2004 (Vic)
Sentencing Act 1991 (Vic)
CASES
Adut and Minister for Home Affairs [2018] AATA 4089
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104
DAO16 vMinister for Immigration and Border Protection and Another [2018] FCAFC 2
DPP (Tas) v Latham [2009] TASSC 101
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
James v R [2009] NSWCCA 62
Minister for Immigration and Citizenship v SZRKT and Another [2013] FCA 317
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR
Reddy and Minister for Immigration and Border Protection [2016] AATA 1043
R v Booth [2009] NSWCCA 89
R v Cook; Ex p DPP (Cth) [2004] QCA 469
R v Liddington (1997) 97 A Crim R 400
R v Sharpe [2001] 1 SCR 45
R v Stroempl (1995) 105 CCC (3d) 187
R v Quick (2004) 148 A Crim R 51
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
SECONDARY MATERIALS
Explanatory Memorandum to the Migration Amendment Regulation 2012 (No. 5)
Marchetti, E., Classification of child exploitation material for sentencing purposes: Final report, (July 2017) Queensland Sentencing Advisory Council < FOR DECISION
Senior Member A. Nikolic AM CSC
27 February 2019
INTRODUCTION

The applicant seeks review of a decision by a delegate of the Minister for Home Affairs (“Minister”), made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class XA Subclass 866 Protection visa (“the visa”).
The hearing was held in Melbourne on 18 and 19 February 2019 with the assistance of an interpreter in the Hazaragi language. The applicant was represented by Ms Julie Zhou of counsel, who appeared pro bono, and was instructed by Refugee Legal. The Minister was represented by Mr Chris Brinley, a solicitor from Clayton Utz.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 4 March 2019.
For the reasons that follow, the Tribunal affirms the decision under review.
APPLICANT’S IDENTITY
Section 501K of the Act provides that the Administrative Appeals Tribunal (the “Tribunal”) must not publish (in electronic form or otherwise) any information that may identify a person who has applied for a protection visa, a protection-related bridging visa, or who has had a protection visa cancelled. As this matter relates to the cancellation of the applicant’s protection visa, the Tribunal will refer to him by the pseudonym DGBK. Certain details that might tend to identify DGBK have been redacted, including the identity of witnesses and the names and information of other persons that might identify him.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal has before it the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) dated 31 January 2019, the Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 12 February 2019, and the Applicant’s Reply to the RSFIC dated 13 February 2019. The following documents were taken into evidence:
(a)G-documents and Supplementary G-documents numbering 1009 pages;[1]
(b)A five-page written statement from DGBK lodged on 31 January 2019.[2] The Tribunal also notes DGBK’s previous Personal Circumstances Forms,[3] statements, and other submissions in evidence;[4]
(c)A 35-page counselling record from the International Health and Medical Services, covering the period from 2 February 2017 to 7 September 2018;[5]
(d)Two witness statements,[6] noting that only the author of Exhibit A4 appeared at the hearing by telephone, gave oral evidence and was cross-examined; and
(e)A letter of support from the Centre for Asylum Seekers, Refugees and Detainees (CARAD) dated 13 February 2019.[7]
[1] Collectively taken into evidence as Exhibit R1.
[2] Exhibit A1, which is erroneously dated 1 January 1970. This was corrected by the Applicant during his oral evidence to read 29 January 2019.
[3] Exhibit R1, 92-103.
[4] Ibid, 106-124; 174; 181-197; 198-199; 379-459; 471-472; 485.
[5] Exhibit A2.
[6] Exhibits A4 and A5 respectively.
[7] Exhibit A3.
BACKGROUND
DGBK was born in Afghanistan and is currently under 30 years of age. He is of Hazara ethnicity and the Shia branch of Islam. After living in Afghanistan and then Pakistan until the age of 17, he travelled to Australia on a false Pakistani passport via Thailand, Malaysia and Indonesia,[8] arriving here approximately seven years ago as an irregular maritime arrival.[9]
[8] Exhibit R1, 351.
[9] For a definition of this term see, for example, the Explanatory Memorandum to the Migration Amendment Regulation 2012 (No. 5) at:
DGBK spent approximately seven months in immigration detention before being released into the community under a protection visa. Approximately 18 months later, DGBK commenced a course of conduct that led to his arrest, and subsequent conviction at two criminal trials,[10] of 11 sexually-based offences against multiple minor children.
[10] Exhibit R1, 40-66; 67-82.
DGBK’s visa was mandatorily cancelled in late 2016.[11] He was invited to make representations to the Minister seeking to have the visa cancellation decision reversed, and did so within the period and in the manner specified under the Act.[12] After considering his representations, the Minister decided in late 2018 not to revoke the cancellation decision.[13]
[11] Ibid, 83-86.
[12] Ibid, 89-91.
[13] Ibid, 10-27.
Following his release from prison in January 2017, DGBK was taken into immigration detention where he presently remains. In August 2017, an International Treaties Obligation Assessment (“ITOA”) found that DGBK is a person whose circumstances engage Australia’s non-refoulement obligations.[14]
[14] Ibid, 351-371.
National Police Certificate and Sentencing Remarks
DGBK’s offending encompasses contact and non-contact offences against children[15] over a period of approximately six months. This offending can be summarised from his National Police Certificate[16] and the available sentencing remarks[17] as follows:
(a)DGBK pleaded guilty ‘at the earliest reasonable opportunity’[18] to multiple state and Commonwealth charges including: grooming children under the age of 16 for sexual activity; transmitting indecent communications; soliciting child pornography; transmitting child pornography; indecent assault; and sexual penetration of a child;
(b)All of the children DGBK offended against were of a vulnerable age. One female victim informed DGBK she was aged 11. Despite this, he continued to send her messages and offered a monetary inducement for sex. He continued to send her photographs of his penis in various states of arousal, including one in which he was shown ejaculating.[19] The court found that some children were vulnerable in other respects. A male victim was under the care of the Department of Human Services at the time of DGBK’s offending.[20] Another male victim was cognitively impaired;[21]
(c)The court stated that much of DGBK’s conduct was premeditated and had a predatory aspect to it.[22] DGBK exhibited considerable persistence, even after some victims made it clear they rejected his conduct.[23] The court found DGBK offered inducements to four victims in the form of money, cigarettes and alcohol;[24]
(d)DGBK’s offending only came to an end as a result of police intervention and not because he decided to desist from his criminal conduct;[25]
(e)While DGBK expressed regret and shame for his actions, the Court found his remorse ‘somewhat qualified,’ given that DGBK sought to downplay the relative seriousness of his offending by: claiming ignorance of the law; by claiming not to know the age of one victim; and by seemingly deflecting blame for the initiation of one interaction because it was the child who had made an offer to him;[26] and
(f)One male child and that child’s parent opted to make a victim impact statement to the court, referring to the negative and enduring impact of DGBK’s offending.[27] The Court found that the child had suffered significant and lasting psychological and emotional harm as a result of DGBK’s actions and it would be many years before the child is able to consider taking the necessary steps to reduce his suffering;[28]
[15] For an explanation of the difference, see Australian Institute of Criminology, Brief review of contemporary sexual offence and child sexual abuse legislation in Australia (2015) Australian Government < Exhibit R1, 36-37.
[17] Ibid, 40-66; 67-82.
[18] Ibid, 53 [72].
[19] Ibid, 44 [17]-[18]; 56 [83].
[20] Ibid, 47 [39].
[21] Ibid, 68 [2].
[22] Ibid, 55 [81].
[23] Ibid, 56 [87]
[24] Ibid, 56 [88].
[25] Ibid, 57 [90].
[26] Ibid, 54 [73].
[27] Ibid, 49 [51]-[53].
[28] Ibid, 55 [82].
By reason of his convictions and sentencing, DGBK became a registered sex offender under the Sex Offenders Registration Act 2004 (Vic) (“SORA”), subjecting him to obligations under that Act for 15 years. The SORA regulates those convicted of sexual offences, imposing reporting of personal details and annual reporting to police in respect of a range of requirements.
Medical evidence
Consultant Psychologist, Ms Carla Lechner, examined DGBK at the request of his lawyers in late 2014. She noted in her report that:
(a)DGBK exhibited symptoms of unresolved Post-Traumatic Stress Disorder relating to his traumatic experiences in Afghanistan and Pakistan. He also exhibited symptoms of depression as a reaction to separation from his family and the pending court hearing at that time, which justified a diagnosis of Adjustment Disorder with Depression; [29]
(b)DGBK had battled homesickness, depression and isolation, had few friends and was largely socially isolated prior to his arrest;
(c)Based on DGBK’s text message communications with his victims, Ms Lechner did not accept his claims that his offending resulted from ignorance of the law as he claimed. She opined instead that he was aware of his wrongdoing, although he may not have fully understood the consequences;
(d)In the summary and opinion section of her report, Ms Lechner stated that a combination of factors are likely to have contributed to DGBK’s offending as follows:
[DGBK’s] involvement in these matters appears to be due to a complex combination of factors, including exposure to greater sexual freedom not afforded in his country of origin, social isolation and unresolved psychological distress and a lack of requisite skills and support to manage his stress in an adaptive manner. Specifically his depressed mood state and social isolation adversely affected his judgement in relation to seeking out appropriate sexual contacts and liaisons.[30]
(e)Contrary to DGBK’s insistence that he was not sexually interested in children, Ms Lechner considered he displayed hebephilic tendencies.[31] She recommended this be further assessed by the Sexual Offenders Program[32] to better understand his latent sexual attitudes and interests;
(f)DGBK was capable of reflecting on the impact his behaviour has on himself and others. He had expressed shame and regret for his actions; and
(g)With the supports she recommended, Ms Lechner assessed DGBK’s prognosis as likely to be favourable.
[29] Ibid, 848.
[30] Ibid, 850.
[31] Ibid. Which Ms Lechner defined as an interest in post-pubescent adolescents.
[32] Ibid.
The sentencing judge at DGBK’s first trial concluded he could not see how any condition DGBK might have, would explain his repeated criminal conduct against children.[33] The Court referred to aspects of Ms Lechner’s assessment, including that DGBK:
(a)has average intelligence and is ‘generally capable of reflecting on the impact that [his] behaviour has on others and [himself];’[34]
(b)was depressed at the time of his psychological assessment[35] and had unresolved post-traumatic stress disorder from events in Afghanistan and Pakistan;[36]
(c)battles homesickness, depression, isolation, and worries about the safety of his family in Pakistan;[37]
(d)was unconvincing in submitting that his offending was due to ‘ignorance of the law,’ which the court rejected;[38]
(e)displays emotional immaturity and hebephilic tendencies requiring further assessment;[39]
(f)committed his offences in the context of the factors identified by Ms Lechner, including his curiosity, social isolation and depression;[40] and
(g)did not warrant a reduction in his moral culpability as a result of any impairment identified by the psychologist, because the available evidence did not ‘reach [the] threshold test.[41] DGBK did receive consideration from the Court, however, as a result of his young age and social immaturity.[42]
[33] Ibid, 52 [68].
[34] Ibid, 50-51 [61].
[35] Ibid, 51 [64].
[36] Ibid, 51 [62].
[37] Ibid, 51 [63].
[38] Ibid, 51 [65].
[39] Ibid, 52 [66].
[40] Ibid, 51 [66].
[41] Ibid, 52 [68].
[42] Ibid, 53 [69].
Evidence of DGBK
In his oral evidence, DGBK recalled his difficult early life in Afghanistan, which included witnessing the immediate aftermath of his father’s death at the hands of DGBK’s uncle (his father’s brother). DGBK submits his uncle committed the murder in company with the Taliban.
DGBK said his mother relocated the family to Pakistan, where he sold goods at a local bazaar from the age of 10. As a young person of Hazara Shia origins, he claims to have been targeted, robbed and abused. DGBK states that, at the age of 13, he was raped by two adult males, who threatened to kill him and his family if he reported it.[43] He said he did not inform the police or his mother about this incident.
[43] Exhibit A1, [9].
DGBK states that, at about the age of 14 or 15, he discovered his sexuality was different to others because he liked ‘both men and women.’[44] He suppressed his sexuality because ‘bisexuals are not accepted in Islam.’ While living in Pakistan he recalls a loving relationship with a woman for approximately two years until, he claims, her father discovered the relationship and beat them both. DGBK said the woman’s father forced her to marry a much older man, causing DGBK to despair and ‘cut his forearm with a razor blade.’ He claims this incident of self-harm arose out of a sense of grief rather and was not a suicide attempt.
[44] Ibid [10].
DGBK was asked about a consultation with clinical psychologist Ms Carla Lechner in late 2014, which was arranged by his then legal representatives.[45] He recalls the consultation took approximately 2-3 hours and was in support of submissions made at his first criminal trial. He said the report focussed on issues like whether he was attracted to children and his future risk of reoffending.
[45] Exhibit R1, 845-851.
DGBK was asked if he told Ms Lechner about harming himself after the end of the two-year relationship in Pakistan. DGBK confirmed he had. When asked why Ms Lechner had not recorded the self-harm or the two-year relationship in her report, DGBK responded that Ms Lechner had not asked him about it. A series of questions were then asked, including how Ms Lechner could have asked DGBK about something that was only in DGBK’s personal knowledge. When asked how he could have had told Ms Lechner about cutting his arm, without telling her about the context of his two-year relationship ending, DGBK responded: I can’t remember.’
DGBK was asked about the reference in Ms Lechner’s report to him being in a ‘Facebook relationship’ with a 20 year-old ‘girlfriend in Pakistan,’ who DGBK ‘had not actually met.’[46] DGBK said this was unrelated to the two-year relationship referred to in his statement, but to another woman. When pressed about why he had not revealed both relationships to Ms Lechner, DGBK said he was ‘scared’ and conceded that it was a ‘mistake’ not to have shared everything about himself with Ms Lechner. When pressed further, DGBK explained he had withheld the two-year relationship from Ms Lechner because his cousins were attending his criminal trial and he didn’t want them to find out. When asked to clarify why he was concerned about his cousins learning about the relationship, DGBK replied: ‘it is bad unless I am married to someone…if her family find out its not acceptable.’ The Tribunal notes, however, that in his most recent statement, DGBK’s evidence is that the father of the girl had discovered the relationship prior to DGBK’s departure from Afghanistan. He had then purportedly broken the relationship up and forced his daughter to marry a much older man.[47] It was put to DGBK that it was implausible he told Ms Lechner about a Facebook relationship with a woman he’d never met (and also wasn’t married to), but not about a more meaningful two-year relationship. The Tribunal was not satisfied that DGBK’s responses alleviated its concerns about these inconsistencies in his evidence.
[46] Ibid, 849.
[47] Exhibit A1, 1 [11].
When asked why Mr Lechner had noted in her report that DGBK ‘has not been a victim of sexual abuse,’ DGBK said it was because he ‘didn’t know what sexual abuse means.’ He claimed that if Ms Lechner had asked him whether he had been raped, he would have responded yes. He claims to have only learned about what sexual abuse means during his sexual offender’s course while imprisoned. When the Tribunal noted that the context of Ms Lechner’s questions in that section of her report related to victims; whether DGBK had been a victim of sexual abuse and how he felt about the victims of his own sexual offending against children, DGBK maintained he did not understand the question put to him. Again, the Tribunal was not satisfied that DGBK’s responses alleviated its concerns about this inconsistency in his evidence.
DGBK states that he passed out and was hospitalised for two weeks with shrapnel injuries, after a suicide bombing in Pakistan shortly before he departed for Australia. DGBK said he had been working in the bazaar when the bomb exploded in the street. When referred to his most recent statement, in which he claims ‘a suicide bomber went into a mosque near the bazaar’ and ‘blew themselves up,’ DGBK sought to retract the reference to the bomb exploding inside a mosque. The Tribunal expressed concern that DGBK wanted to retract information from a statement he had earlier affirmed was completely true and accurate in every respect. DGBK subsequently amended the reference in his statement to read: ‘a suicide bomber detonated their jacket in a crowd of people in the bazaar approximately 30-50 metres away.’

In his most recent written statement, DGBK claims to have been: ‘hit with shrapnel on my arms, my back and the back of my neck’[48] as the result of a suicide bombing in Pakistan. In his oral evidence, however, DGBK claimed he was injured by shrapnel only in his right arm and back. Ms Lechner had only recorded in her report 2014 that: ‘in 2009 a bomb blast injured his arm.’[49] The court had similarly referred to ‘an injury to [DGBK’s] arm in a bomb blast.’[50] When asked to comment on these disparities, DGBK stated that the precise location of injuries from the suicide bombing was near his right elbow, his lower back near his right ribcage and on the back of the right side of his neck.
[48] Ibid, [13].
[49] Exhibit R1, 785.
[50] Ibid, 50.
After leaving hospital following the bombing, DGBK submitted his mother was so concerned for his safety that she decided he ‘should go to Australia.’ His mother and three younger siblings remained in Pakistan.[51] DGBK travelled to Australia on a false Pakistani passport via Thailand, Malaysia and Indonesia, arriving approximately seven years ago as an irregular maritime arrival.
[51] Ibid, 50 [56].
After approximately eight months in immigration detention,[52] DGBK was released into the community and moved to Melbourne. He lived with his two cousins and then a friend. In the two years prior to his arrest in May 2014, he worked as a cleaner and in a factory. After being imprisoned he also worked in a variety of roles. DGBK has not spent any time at liberty in the community since being imprisoned. After release from prison he was taken into immigration detention, where he presently remains.
[52] Exhibit A1, 2 [15].
DGBK agreed he had been convicted of 11 offences against multiple minor children, which was the subject of extensive questioning during cross-examination. He insists that he ‘didn’t know at that time about the issue of consent or that it was illegal to have sexual contact with anyone under 18.’ In relation to a question about a 15 year old boy DGBK encountered near a train station toilet, he stated: ‘I made a wrong decision at that time, I wasn’t aware of no sexual contact with someone under 18. Because of my sexuality I was just doing that and not sharing my feelings with someone else…I’m ashamed…I can’t face myself in the mirror.’ He submitted: ‘I can’t fix my past, but I can fix my future.’
DGBK was asked about his interaction on social media with an 11 year old girl, who had told him her age and had asked him to stop contacting her. He stated: ‘I was doing this because of my sexuality.’ When pressed further, he said ‘because I was stupid at that time and because of my sexuality.’ When asked by the Tribunal about his repeated references to his ‘sexuality,’ DGBK explained: ‘I was just looking for anyone on the internet – I was looking for anyone randomly. It’s not that I’m attracted to children.’ When it was put to DGBK that Ms Lechner and the court had noted that based on his offending, his ‘sexual interests…appear to be hebephilic, that is, post-pubescent adolescents,’[53] DGBK stated: ‘I absolutely disagree’. He claimed that he was not attracted to children and contextualised his offending as a ‘mistake’ while ‘randomly’ seeking to express his sexuality online.
[53] Exhibit R1, 720.
DGBK made numerous references to going on social media to ‘find [his] sexuality,’ but concedes he went about it ‘the wrong way.’ He stated repeatedly that he had expressed his sexuality in an inappropriate way and had ‘harmed other person’s lives’ as a consequence. He said that, as a victim of sexual assault himself while a child, he had ruminated constantly about the inappropriateness of his actions. He realises what a ‘big mistake’ he has made, which he had ‘learned from’ and was determined never to repeat.
When asked if he thought his conduct was morally rather than legally wrong, DGBK responded: ‘I thought it was wrong, but I keep doing it. From the country I came from young people marry at 14-15 years old. I wasn’t thinking about it then, but now as a human being it’s absolutely wrong.’ During re-examination, DGBK stated he had pleaded guilty to his offences in part because his lawyer had told him if he did not, then he would ‘spend 10 years in prison.’ In response to a follow-up question he confirmed that he had also pleaded guilty because he had committed the offences, and emphasised he had admitted his offending to police and the courts at the earliest opportunity.
During his imprisonment and immigration detention DGBK stated he had completed a sex offender’s program of 7-9 months duration and other ‘small programs.’ DGBK claimed that after his arrival in Australia, he was ignorant of the law as it related to sexual contact with children. But after completing the sex-offender’s program, he was now fully conversant with that aspect of the law and the meaning of terms like ‘consent’ and ‘sexual assault.’ He was determined never to reoffend.
When asked about the shorter courses and group therapy sessions he had undertaken, DGBK stated: ‘drug and alcohol, concerns, distress…I can’t remember exactly.’ He submitted that videos were shown to participants followed by group discussion. He also referred to contact with Ms [redacted] from CARAD, who he considered to be a ‘good friend’ and with whom he shared everything during regular telephone contact.
DGBK’s unquestioned evidence is that he has not committed any indiscretions in prison or immigration detention and has a clear record. He stated that he treats other inmates, detainees and officers with respect, and most were respectful in return. He recalled one incident on Christmas Island in mid-2017, however, where another detainee had verbally abused and pushed him[54] in front of officers while he was lighting up a cigarette. He submitted a complaint but withdrew it two weeks later, claiming this was after he had reflected on how the victims of his own offending must have felt. He felt like he deserved the abuse he received because of the harm he had caused to children.
[54] Exhibit A1, 3 [29].
When asked what he would do if released into the community, DGBK said he would live with a friend, organise his ‘papers’ like a Medicare card, find work, undertake counselling and do his best to be a contributing member of the community. When asked by Ms Zhou why he would undertake counselling if released, DGBK stated: ‘If something go into my mind I can share my thoughts and feelings with someone one-on-one.’ DGBK submits that his cousins have promised him a job, but if they do not have a fulltime position available, he will seek other work, including a factory job that a friend had promised to assist with.[55] When asked about the consequences of any further offending, DGBK stated he would be ‘back to a criminal court and to jail.’ He did not want that to occur and was determined not to make any further ‘mistake.’ He was aware of his reporting obligations under the SORA which required him, amongst other things, to inform police when he changed his telephone number and to provide information about his internet and Facebook usage. DGBK stated that: ‘safety of the community is first priority for me.’
[55] Ibid, 4 [33].
If returned to Afghanistan, DGBK stated he would ‘probably be killed as a Hazara Muslim and if anyone finds out about my bisexuality, which is a death sentence.’ Moreover, he had left Afghanistan as a five year old and would not have anywhere to go or anyone to rely upon.
Witness statements and references
Two statements and a letter have been lodged with the Tribunal in support of DGBK:
Statement from DGBK’s cousin
One unsigned statement dated 13 February 2019, is purportedly from DGBK’s cousin. Counsel for DGBK advised the Tribunal that the cousin was absent overseas and unavailable to give oral evidence or be cross-examined. The Tribunal accepted the statement into evidence,[56] noting Mr Brinley’s submission that little weight should be placed on the letter because the witness could not be cross-examined.
[56] Exhibit A5.
Statement from DGBK’s friend
A second unsigned statement dated 13 February 2019 was tendered from a friend of DGBK (“the friend”) and was taken into evidence.[57] The Tribunal gave leave for the friend to give oral evidence by telephone, which he did with the assistance of an interpreter in the Hazaragi language.
[57] Exhibit A4.
In his oral evidence, the friend stated he resides in Australia under a temporary protection visa. He first met DGBK in 2013 and they were housemates for approximately one-and-a-half to two years until DGBK’s arrest. He initially stated it had been one year since his last contact with DGBK by telephone, and confirmed this evidence during follow-on questions. The friend stated that after DGBK’s imprisonment in January 2017, DGBK had called him by telephone and the friend had subsequently visited him on one occasion. When it was pointed out to the friend that his oral evidence about having no contact with DGBK during the last year was inconsistent with his statement, in which he claims to speak to DGBK by telephone ‘once every month or two,’ he sought to change his evidence. When asked why his evidence about contact was inconsistent, he claimed to have ‘just come back from work,’ was very tired and was having his dinner.
When asked if DGBK had informed him about the nature of his offences, the friend stated: ‘No – the only thing he told me during the half hour visit was that he make a mistake.’ When asked why he had not asked for further details about the offending, the friend responded ‘I didn’t want to go too deep.’ When pressed about the reasons why DGBK had been imprisoned, however, the friend responded: ‘sexual assault against underage girls and boys.’ When asked about how many offences he was aware of, the friend replied ‘I don’t know exactly… two or three – one boy one girl.’ When asked about the sentences imposed, or how many court appearances, the friend replied ‘I don’t know.’ While the friend’s statement purports to know ‘exactly what DGBK was found guilty of,’ this was not reflected in his oral evidence.
In relation to the support the friend could provide DGBK if released into the community, he said he could offer him a spare room and help him find employment at the farm he was working at. When asked if he had spoken to anyone at the farm in respect of securing employment for the Applicant, he responded ‘no.’
Statement from CARAD
A letter from the General Manager of CARAD dated 13 February 2019 was taken into evidence.[58] It states that the ‘main role of CARAD is to provide friendship and support’ to people in immigration detention. The author did not appear at the hearing and was not cross-examined. The letter is not a first person account of the author’s interaction with DGBK, but describes DGBK’s interaction with a CARAD volunteer (Ms [redacted]) and CARAD’s ‘social support team’ during the last 15 months. The letter also erroneously states: ‘while we understand that [DGBK] has committed an offence…,’ which reflects an incorrect understanding of the scope of DGBK’s offending.
[58] Exhibit A3.
STATUTORY FRAMEWORK
A person who is not an Australia citizen, and is in the migration zone while holding a visa that is in effect, is a ‘lawful non-citizen’ (s 13(1) of the Act). Any other non-citizen in the migration zone is an ‘unlawful non-citizen’ (s 14(1) of the Act).
Section 189(1) of the Act requires that an ‘officer,’ as defined in s 5(1), ‘must’ detain a person the officer knows or reasonably suspects is an unlawful non-citizen.
Except in some circumstances, like when the Minister personally makes a decision under s 501 of the Act,[59] the officer must ensure that a detained person is made aware of the provisions of ss 195 and 196 of the Act as soon as reasonably practicable (s 194(a)). Section 195 enables a detainee to apply for a visa within a short period of time. If they do not do so within that time, they may only for a bridging visa or a protection visa. A detained person may also be granted a visa of a particular class if the Minister considers it is in the public interest to do so. For example, s 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa. The power must be exercised by the Minister personally (s 195A(5)). The Minister is not obliged to consider whether to exercise the power (s 195A(4)). Section 197AB allows the Minister, if the Minister thinks it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration detention as defined by the Act. Again, the Minister is under no duty to make such a determination (s 197AE), and is obliged to exercise the power personally (s 197AF).
[59] Migration Act, s 193(1)(a)(iv).
Section 196(1) of the Act provides for the duration of detention, mandating that an unlawful non-citizen detained under s 189 must be kept in immigration detention until removed, deported or granted a visa. Section 196(4) provides, subject to s 196(1)(a), (b) and (c) that if a person is detained as a result of the cancellation of their visa under s 501, the detention is to continue unless a court determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. Section 196(5) provides that s 196(4) applies whether or not there is a real likelihood of the person detained being removed under s 198 or s 199 in the reasonably foreseeable future and whether or not a visa decision relating to the detained person is, or may be, is unlawful.
Section 198(2B) was inserted into the Act by Item 11 of Schedule 1 to the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) and provides that:
An officer must remove as soon as reasonably practicable an unlawful non-citizen
if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section
501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Section 197C(2) provides that:
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
The purpose of introducing s 197C into the Act is contained in the Explanatory Memorandum (EM) to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Clauses 1132 to 1146 of the EM relate to the application of s 197C to Australia’s non-refoulement obligations:
1132. The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.
1133. In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of presumed legislative intention for the Migration Act as a whole to facilitate Australia’s compliance with its obligations under the Refugees Convention.
…
… These decisions have had significant impact on the Government’s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.
1136. Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia’s international obligations…. This was because it was understood that Australia’s international obligations had already been considered during separate processes prior to removal, for example when considering the person’s application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137. In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.
…
1140. The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances set out in section 198 of the Migration Act.
1141. This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.
1142. Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
…
1146. The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
Section 500(1)(ba) of the Act provides for applications to be made to the Tribunal if the Minister decides under s 501(CA)(4) not to revoke a visa cancellation decision.
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) to introduce sections 501(3A) and 501(6)(e), amongst other amendments. The Explanatory Memorandum for the Amendment Act states:
New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
For the purposes of new paragraph 501(6)(e) of the Migration Act, the term “sexually based offences involving a child” would include, but would not be limited to, offences such as child sexual abuse, indecent dealings with a child, possession or distribution of child pornography, internet grooming, and other non-contact carriage services offences. This amendment is intended to apply irrespective of the level of penalty or orders made in relation to the offence.
The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test. Currently, such offences may be considered under subsection 501(6) of the Migration Act when deciding whether a person fails the character test, but this amendment removes the subjectivity from this assessment in cases where the person does not fail the substantial criminal record test in subsection 501(7) because a sentence of imprisonment of at least 12 months has not been imposed.
(emphasis added)

The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act (ss 4(1) and 4(4)). As the High Court held in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
Section 501(3A) of the Act, read in conjunction with sections 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a fulltime sentence of imprisonment.
The character test is defined in sections 501(6) to 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) …; or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3)(b), the Minister is obliged as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about the revocation of the original cancellation decision. Provisions relating to the form and process of those representations are regulated by reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
Under s 501E(1) of the Act, visa cancellation precludes a person within the migration zone from applying for, or obtaining, certain other classes of visa. Under s 501E(2), however, the preclusion does not apply to applications for a protection visa or a bridging visa pending a person’s removal. Refusal of a protection visa application, or cancellation of a protection visa, precludes a further protection visa application, subject to the favourable exercise of a Ministerial public interest discretion under ss 48 and 48B(1) and (1B) of the Act.
The Tribunal is bound by s 499 of the Act to apply Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).[60] The terms of the Direction, including its objectives, general guidance, principles and other provisions are routinely published[61] and publicly available. They need not be set out in detail.
[60] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104 at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
[61] See, for example, Adut and Minister for Home Affairs [2018] AATA 4089 at [17]-[22].
Paragraph 7(1)(b) of the Direction provides that in DGBK’s case, the considerations in Part C relating to the mandatory cancellation of a visa must be taken into account. If DGBK does not to pass the character test, the three primary considerations at paragraph 13(2) of the Direction to be considered are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must also be taken into account, where relevant, in deciding whether to revoke the mandatory cancellation of a visa. These include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(3) of the Direction states: ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of a visa, or whether or not to revoke a mandatory cancellation of a visa.’ Paragraph 8(4) states: ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states: ‘One or more primary considerations may outweigh other primary considerations.’ As held in Schuster-McFadyen v Minister for Immigration and Citizenship,[62] however, the Tribunal can give equal or greater weight to any consideration.
[62] [2011] FCA 1303; 124 ALD 68. As held by Tracey J at [32], it is also open to the Tribunal to conclude ‘that the “other considerations”… carry more weight than…adverse primary considerations.’
DOES DGBK PASS THE CHARACTER TEST?
DGBK concedes, through his legal representative, that he does not pass the character test.[63] Because of the combined effects of ss 501(6)(e)(i), 501(6)(a), and 501(7)(c) of the Act, I find that DGBK does not pass the character test.
[63] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 31 January 2019, 2 [9].
ISSUE TO BE RESOLVED
Under s 501CA(4)(b)(ii) of the Act, it remains to be determined if there is ‘another reason’ to revoke the mandatory cancellation of DGBK’s visa. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[64] which I adopt:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”
[64] [2016] FCA 1166 at [38].
DGBK’S EVIDENCE
The Tribunal has unresolved concerns about a number of inconsistencies in DGBK’s evidence. There are disparities between DGBK’s more recent evidence about a two-year personal relationship in Pakistan and having been sexually-assaulted as a child, when compared to the information recorded by Ms Lechner after her consultation with DGBK in 2014. The Tribunal notes the submissions of DGBK’s counsel during closing submissions, supported by two cases that were handed up,[65] regarding the Tribunal’s consideration of these inconsistencies as they relate to DGBK’s credibility. SZRKT at [78] cautions against making adverse findings about an applicant’s credit ‘on an objectively minor matter of fact [as] the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.’ The Full Court referred to this aspect of SZKRT with approval in DAO16. The Tribunal considers the present matter is distinguished from these authorities because there is no question of the entirety of DGBK’s evidence being rejected as a result of the inconsistencies noted. In the present matter, the Tribunal has noted concerning inconsistencies that have not been alleviated by DGBK’s explanations, and therefore remain of concern.
PRIMARY CONSIDERATIONS
[65] Minister for Immigration and Citizenship v SZRKT[2013] FCA 317 (SZRKT); DAO16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 2 (DAO16).
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)    The sentence imposed by the courts for a crime or crimes;
d)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)    The cumulative effect of repeated offending;
f)     Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Australian society abhors the sexual exploitation of children and insists that criminal sentences are sufficiently strong to protect children, punish offenders, and serve as a powerful denunciation of such conduct. The legislature, at both a state and Commonwealth level, has set relatively high maximum penalties for offences relating to sexual crimes against children.[66] In part, that reflects the inherent vulnerability of children, whose emotional maturity is not fully developed, and who are consequently at a disadvantage when confronted with choices of a sexual nature.
[66] Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
The nature and seriousness of DGBK’s conduct is clearly reflected in the sentencing remarks of the Court, on which the Tribunal places considerable weight. DGBK’s offending commenced approximately 18 months after he was released into the community and continued for approximately six months before it ceased as a result of his arrest. He committed 11 sexually-based offences involving multiple children. His criminal conduct was not considered impulsive or fleeting in nature; the court found much of it was premeditated, predatory[67] and persistent.[68] DGBK was undeterred by the explicit and repeated rejection of his advances by some children.[69] Two of DGBK’s victims were 11-year-old and 13-year-old girls. Two others were 14-year-old and 15 year-old boys. These victims are demonstrably vulnerable members of the community within the meaning of paragraph 13.1.1(1)(b) of the Direction. The Tribunal notes the Court’s references to the significant psychological harm caused by DGBK’s offending.[70] The available victim impact statements speak of harm that will last long into the future.
[67] Exhibit R1, 55 [81].
[68] Ibid, 56 [84]; 70 [8].
[69] Ibid, 42 [9]; 43 [13]; 44 [17]; 56 [87].
[70] Ibid, 56 [89]; 70 [8].
The Court did not consider that any condition DGBK had explained his repeated criminal conduct against children.[71] The Court found that any impairment referred to in Ms Lechner’s report did not warrant a reduction in DGBK’s moral culpability, because the available evidence did not ‘reach the threshold test.[72] The Court rejected DGBK’s claims about ignorance of the law and considered his expressions of remorse were somewhat qualified.
[71] Ibid, 53 [68.
[72] Ibid, 52 [68].
DGBK was sentenced on the basis of an agreed statement of facts reflecting ‘inherently serious’[73] offending. He was awarded immediate imprisonment, which is at the top end of the court’s sentencing options. The court held that only a relatively substantial term of imprisonment gave appropriate weight to his offending. At his first trial, DGBK was awarded an overall total effective sentence of four and a half years.[74] At his second trial, DGBK received sentences of 12 months imprisonment on each of two charges.[75] Had he pleaded not guilty, the sentencing judges at both trials indicated they would have ordered longer sentences.[76]
[73] Ibid, 55 [79].
[74] Ibid, 61 [125].
[75] Ibid, 73 [19]-[22].
[76] Ibid, 62 [135]; 74 [23].
For the reasons outlined above, the Tribunal finds that DGBK’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states in part:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
DGBK’s offences involving physical contact with some children have undoubtedly caused these children harm. That is apparent from the sentencing remarks and the Tribunal’s own review of the victim impact statements in evidence.[77] DGBK’s non-contact offences, for example those relating to child pornography, have also harmed children. That is particularly the case for children used in the production of such material, who suffer appalling abuse and exploitation.[78] It is not difficult to appreciate the profound physical and psychological harm that many of these children suffer.[79]
[77] Ibid, 48-49 [50]-[53]; 70 [ 8].
[78] R v Booth [2009] NSWCCA 89 at [43]; James v R [2009] NSWCCA 62 at [11]; R v Cook; Ex p DPP (Cth) [2004] QCA 469 at [21]; R v Stroempl (1995) 105 CCC (3d) 187 at 191; R v Liddington (1997) 97 A Crim R 400 at 409; State of WA v Cunningham (2008) 190 A Crim R 430 at [38]; Hutchins v State of WA [2006] WASCA 258 at [18].
[79] Victims of child exploitation material report lifelong trauma as a result of abuse and re-victimisation via the sharing of material, which is difficult to permanently or fully remove from circulation. Images of their abuse may exist in perpetuity and resurface at any time. See, for example, Professor Elena Marchetti, Classification of child exploitation material for sentencing purposes: Final report, (July 2017) Queensland Sentencing Advisory Council , 14 < See also, DPP (Tas) v Latham [2009] TASSC 101 at [33]; R v Sharpe [2001] 1 SCR 45 at [91]; R v Stroempl (1995) 105 CCC (3d) 187 at 191; R v Quick (2004) 148 A Crim R 51 at [66].
If DGBK were to repeat any of his offences, the harm that may be inflicted on Australian children is potentially very serious. DGBK claims he has been fully rehabilitated through completion of a sex offender’s program and the other rehabilitative steps he has taken while imprisoned and in immigration detention. He submits that all of the ‘traits’ relating to his past sexual offending against children have been ‘extinguished,’[80] and his current risk of reoffending is ‘negligible.’[81] DGBK’s legal representatives ask the Tribunal to accept those submissions ‘primarily on the basis of the applicant’s own evidence’ and what that evidence reveals about his future ‘attitudes, intentions, actions and motivations.’[82] It is further submitted that the Tribunal’s findings should be informed by the court’s reasons,[83] and the applicant’s:
(a)traumatic early life in Afghanistan and Pakistan, including being a victim of sexual assault as a 13-year-old child;
(b)lack of prior other offences, and his intense shame and remorse;
(c)young age at the time of his offending and the almost five years of self-reflection while imprisoned and in immigration detention;
(d)efforts at self-improvement while incarcerated, including completion of programs,[84] and regular attendance at group counselling sessions;[85] and
(e)obligations under the SORA, which have a preventative effect.
[80] Exhibit R1, 99.
[81] ASFIC, 3 [15].
[82] Ibid, 3-4 [15].
[83] Exhibit R1, 58 [99]; 72 [15].
[84] Exhibit R1,; 150-151; 156; 175; 176.
[85] Exhibit A2.
In relation to assessing whether an applicant represents an unacceptable risk of harm, the Tribunal notes the Full Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR at [493], that neither the ordinary meaning of the term ‘real risk,’ nor any requirement of the law, required that the term be assessed solely on a quantitative basis. Their Honours held that when assessed in a qualitative sense, a real risk is one that ‘is not remote, far-fetched or fanciful.’ It follows that there is no inconsistency in finding that a risk can be real, despite the probability of it occurring being quantitatively low or minimal.
The Direction acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.

DGBK’s contends that he constitutes a ‘negligible’ risk of reoffending. Weighed against that contention, is the very serious harm arising from his past offending against multiple minor children. His criminal conduct commenced relatively soon after he was granted a protection visa and released into the community. Much of his subsequent conduct was premeditated and had a persistent and predatory nature.
When asked by the Tribunal about repeated references to his ‘sexuality,’ DGBK explained: ‘I was just looking for anyone on the internet – I was looking for anyone randomly. It’s not that I’m attracted to children.’ When it was put to DGBK that Ms Lechner and the court had noted that based on his offending, his ‘sexual interests…appear to be hebephilic, that is, post-pubescent adolescents,’[86] DGBK stated: ‘I absolutely disagree’. He maintained that he was not attracted to children and contextualised his offending as a ‘mistake’ while ‘randomly’ seeking to express his sexuality online. The Tribunal found this evidence to be unconvincing and self-serving. For the reasons adduced earlier, the Tribunal also continues to have residual concerns about other aspects of DGBK’s evidence. His explanations about the random nature of his online expressions of sexuality are particularly insufficient when his contact offences against children are considered. On those occasions it should have been very clear to him that any expression of his ‘sexuality’ should have been immediately curtailed. Instead, he committed indecent assault and sexual penetration of a child. It is also considered that DGBK’s repeated references to his offending as a ‘mistake’ considerably understates his culpability and the harm he has caused. The Tribunal also remains particularly concerned about DGBK’s persistent reliance on ignorance of Australian law at the time of his offending, which was rejected by the courts and the clinical psychologist his lawyers referred him to.
[86] Exhibit R1, 720.
There is no independent expert evidence to corroborate DGBK’s claim that any objectionable traits underlying his past offending have been ‘extinguished’ or that he constitutes a ‘negligible’ or ‘low’ risk of harm. There is similarly no evidence that DGBK’s unresolved Post Traumatic Stress Disorder,[87] depression, or poor impulse control, or the influence of other contextually-significant factors highlighted by Ms Lechner and the courts, have either been resolved or sufficiently ameliorated in their effect, to render any risk of recidivism ‘negligible’ as he contends. There is a dearth of evidence about the hebephilic tendencies Ms Lechner identified in 2014, which she considered should be explored during DGBK’s attendance on the sex offender’s program, to better understand his latent sexual attitudes and interests. No detail has been tendered from DGBK’s sex offender’s program in this regard. Instead, the Tribunal is asked to rely on DGBK’s unsupported submissions that he has never had a sexual interest in children, is now fully rehabilitated, and only constitutes a negligible risk of causing further harm. The Tribunal does not accept those submissions. While noting the rehabilitative steps DGBK has taken, the Tribunal is not satisfied that if again confronted by social isolation, or depression, or curiosity, or the relative sexual freedoms DGBK says previously caused him to express his sexuality in the ‘wrong way,’ that further poor judgement and impulse control might lead to recidivism and very serious harm to Australian children.
[87] Exhibit R1, 51 [62],
Counsel for DGBK submits that efforts to secure a ‘pro bono psychologist with a view to making an assessment as to the future risk of re-offending’[88] had been unsuccessful. It was further submitted that in a situation where the Tribunal considered DGBK represented ‘more than a minimal risk of reoffending,’ and the risk of offending was ‘determinative,’ then the proper course was to remit the matter to the Respondent with ‘the direction that a forensic psychiatrist performs a risk assessment…’
[88] Applicant’s Reply to RSFIC dated 13 February 2019, [12].
The Tribunal does not consider DGBK’s risk of reoffending alone is determinative. The risk he poses to the Australian community is but one of a non-exhaustive list of considerations applied to the specific circumstances of his case. The Tribunal notes that DGBK has been on notice for approximately two-and-a-half years about his visa cancellation and the considerations on which his revocation request would be determined. It is for DGBK to have tendered any evidence upon which he sought to rely at the present hearing, as provided for in the Tribunal’s directions.
Although the Respondent is under a duty to assist the Tribunal to make the correct or preferable decision pursuant to s 33(1AA) of the AAT Act, I do not consider that extends in the present matter to the sort of assistance that might be expected from a model respondent in circumstances where an applicant is indigent and/or not legally-represented. DGBK is legally-represented in the present matter by competent counsel and an instructing solicitor. The Tribunal has before it expert medical evidence commissioned by DGBK’s legal representative in 2014. The Tribunal also has sentencing remarks of the courts at DGBK’s two trials, and the additional documentary and oral evidence tendered for the present hearing. That evidence is sufficient, in the Tribunal’s view to form reliable conclusions and make findings about the risk of DGBK’s criminal conduct being repeated.
The Tribunal concludes that DGBK:
(a)likely experienced childhood trauma in Afghanistan and/or Pakistan, but any such trauma in no way explains or justifies his offending against children;
(b)has likely suppressed his sexuality since he was 14 or 15 as he claims, but his persistent efforts to contextualise his offending as a ‘mistake,’ arising from attempts to exercise that long-supressed sexuality online are not accepted;
(c)is a relatively young man with no prior record of offending beyond the convictions at his two trials, and whose unchallenged evidence is that he has not committed any other offences or indiscretions while imprisoned or in immigration detention;
(d)expresses remorse for his offending, but those expressions of remorse remain somewhat qualified because of his continuing reliance on ignorance of Australian law at the time of his offending.^. It may be a cliché, but ignorance of the law is no excuse and DGBK’s persistent claims in this regard give rise to concerns that his remorse and insight are not as complete as he contends;
(e)has completed certain courses and programs supporting his rehabilitation. It is not accepted, however, that completion of those rehabilitative steps alone results in DGBK’s risk of reoffending being ‘negligible’ as he contends. That is because Ms Lechner had assessed[89] and the court had agreed, that DGBK’s prospects of rehabilitation were ‘reasonably good’ / ‘relatively good,’ but were ‘somewhat’ contingent on his successful completion of both a sex offenders program and receiving ‘appropriate counselling.’[90] One judge opined that until this had been completed, there was ‘at least some risk’ DGBK will reoffend.[91] The Tribunal notes a letter from Corrections Victoria confirming DGBK’s completion of a sex offender’s program in 2016-2017.[92] But there is no evidence about the specific outcomes of that course, or whether the further assessment referred to by Ms Lechner and the court had occurred in relation to DGBK’s hebephilic tendencies, latent sexual attitudes and interests.[93] In the absence of such evidence from DGBK, the Tribunal cannot accept his contention alone, that he has never had a sexual interest in children;
(f)has not tested any beneficial effects of the sex offender’s program or other rehabilitative steps he has taken in the community. The Tribunal also notes, in respect of the one-on-one counselling DGBK plans to undertake if released into the community, that paragraph 13.1.2(2)(b) of the Direction states decisions should not be delayed in order for rehabilitation to be undertaken;
(g)poses at least a ‘low’ risk of reoffending, which nevertheless constitutes a real risk rather than one that is ‘remote, far-fetched or fanciful.’ Any repetition of DGBK’s offending could result in grave harm to Australian children. The community is entitled to be risk averse in light of the circumstances of this case, and its tolerance for the risk disclosed by the evidence would be understandably very low; and
(h)constitutes an unacceptable risk of harm, which means that this primary consideration weighs strongly against revocation.
[89] Ibid, 58 [99].
[90] Ibid [99]. See also Exhibit R2, 555. The consultant psychologist noted that DGBK ‘has sought inappropriate social and sexual contact…[and]…would benefit from counselling supports that assist him in better understanding appropriate sexual boundaries and behaviour
[91] Exhibit R1, 58 [98]-[99]; 72 [15].
[92] Ibid, 176.
[93] Ibid 850.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2(1) of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children with whom DGBK is associated in Australia.
No submissions were made by DGBK or Ms Zhou regarding this primary consideration. The evidence also does not disclose that DGBK has any parental responsibilities in Australia or other associations with minor children whose interests must be considered in the context of the Direction.
This primary consideration weighs neither for nor against revocation.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Although community expectations are ultimately a matter of judgement for each decision-maker, they turn on the specific circumstances of each case and must be able to be explained.[94] Deputy President Frost of this Tribunal has previously elaborated on the difficulty of distilling the expectations of the Australian community:
…[The Australian community] comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.[95]
[94] Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72].
[95] Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].
Regard must also be had for the guidance at paragraph 6.2(1) of the Direction that:
…The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3(7) of the Direction refers to ‘The length of time a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations.
Ms Zhou submits that the community’s expectations should be informed not only by DGBK’s offending, but also by other factors such as his traumatic upbringing, his remorse, rehabilitative steps taken to date, and the prospect of either ‘indefinite detention or removal to Afghanistan where he will be killed.’[96] Ms Zhou submits that the judicial sentences imposed at the two trials have been effective, the time DGBK has spent in prison and immigration detention is a sufficient deterrent, and the consequences for DGBK are such that cancellation of his visa should be ‘a measure of last resort.’[97] Ms Zhou contends that in such circumstances, ‘many members of the Australian community’ would be minded to give DGBK another chance.[98]
[96] ASFIC, 6 [18].
[97] Ibid, 7 [19.b.-d].
[98] DGBK’s legal representative referred in this regard to Reddy and Minister for Immigration and Border Protection [2016] AATA 1043 at [106-108].
To the extent the above submission implies DGBK’s immigration detention or a decision under the Act not to revoke the cancellation of his visa may constitute additional punishment, it is not accepted. DGBK was convicted and sentenced by a court for his criminal offending. The mandatory cancellation of his visa, however, was an administrative decision under the Act. The Tribunal does not accept that a mandatory cancellation decision or the immigration detention that may follow constitutes an additional punitive measure. The Tribunal notes the High Court’s elaboration on this issue in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61, 80 at [88] (per Gageler and Gordon JJ):
[88] What s 501(3A) does is to require the cancellation of a visa in certain circumstances…That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt. (emphasis added / footnotes omitted)
Nettle J elaborated further at [92]-[93]:
[92] Nettle J. …As a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country. Consequently, as was decided in Robtelmes v Brenan and has ever since been regarded as settled law, Parliament has power under s 51(xix) of the Constitution to make laws for the deportation of non-citizens for whatever reason Parliament thinks fit. And, as Gibbs CJ observed in Pochi, it is only to be expected that it should be so; for such a power is essential to national security.
[93] By s 501(3A) of the Migration Act 1958 (Cth), Parliament has conferred on the Minister for Immigration and Border Protection one of a number of powers calculated to give effect to Australia’s sovereign right to determine which non-citizens shall be permitted to remain in this country. Relevantly, the factum of its operation is that the Minister be satisfied that the subject non-citizen does not pass the “character test” because he or she has been sentenced to death, sentenced to life imprisonment or sentenced to a term of imprisonment of 12 months or more, or because he or she has been convicted or found guilty of one or more sexually based offences involving a child, and the subject non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution. Contrary to the plaintiff’s submissions, however, it does not follow that the provision imposes a punishment. Deportation may be burdensome and severe for a non-citizen, and, in the plaintiff’s case, I have no doubt it will be. But s 501(3A), either alone or by reference to ss 189 and 196, does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty.
[94] Punishment in the relevant sense consists of the measures taken in the name of society to exact just retribution on those who have offended against the laws of society and thus, it is hoped, to facilitate their rehabilitation.83 By contrast, powers of the kind conferred on the Minister by s 501(3A) give effect to Parliament’s right to rid the nation of persons who, in the judgment of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation. Powers of such a kind are measures for the protection of society.
(emphasis added / footnotes omitted)
The Tribunal notes that DGBK has spent approximately seven years in Australia, five of which has been spent in either immigration detention, on remand, or imprisoned. His offending commenced relatively soon after he was released into the community on a protection visa. His offending persisted for approximately six months and only ended when he was arrested. In contrast to what can best be described as a negligible positive contribution in Australia through limited work, and any assistance he may provide to his cousins, DGBK has made a significant negative contribution through his offending against multiple children.
The broad middle ground of Australian society, informed of the specific circumstances of this case, would consider DGBK’s offending to be repugnant and inconsistent with Australia’s values and standards. Any sympathy that may be extended for his difficult early life is substantially outweighed by the nature and seriousness of his offending, which has caused enduring harm.
For the reasons adduced earlier, any risk of DGBK reoffending is unacceptable. The community would be unwilling to accept that risk and would expect the Minister to refuse to revoke the mandatory cancellation of his visa. This primary consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm.[99] Paragraph 14.1 further provides:
(1)       …
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa if the mandatory cancellation is not revoked, it   is unnecessary to determine whether non-refoulement obligations are owed   to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
[99] Direction, para 14.1(1).

In late 2017 DGBK was found to be a person in respect of whom Australia has protection obligations.[100] He cannot currently be returned to Afghanistan without Australia breaching those obligations. If his application before the Tribunal is unsuccessful, DGBK would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention. The Tribunal accepts that prolonged immigration detention has the potential to adversely affect DGBK’s health and welfare.
[100] Ibid, 351-371.
The Tribunal notes the Minister’s recourse to alternative management options to grant a visa under s 195A, or to make a residence determination under s 197AB. There is no evidence, however, regarding any Ministerial intention to exercise an alternative management option in DGBK’s favour.
This consideration weighs strongly in favour of revocation.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
DGBK has spent approximately five out his seven years in Australia either in immigration detention, on remand, or in prison. The Tribunal notes his offending commenced approximately 18 months after he was released into the community. He then spent approximately six months committing offences against multiple children, which only stopped as a result of his arrest rather than any action by DGBK to self-regulate his objectionable behaviour. Following his convictions, a substantial period of imprisonment and immigration detention has followed. Although the evidence discloses some contribution by DGBK, including through work as a cleaner and in a factory, this does not attract much weight.
In relation to the strength, duration and nature of any family or social links DGBK has in Australia, the Tribunal notes Ms Lechner stated in her 2014 report that DGBK has ‘few friends’ in Australia and is ‘largely socially isolated.’[101] On the evidence before the Tribunal that continues to be the case. The relationships with his cousins and a friend that he previously shared accommodation with, previously existed at the time of his offending. In particular:
(a)Cousins. DGBK states his cousins would experience hardship because he helps them ‘carry out plenty of jobs around the house’ and they depend on him.[102] That is a very general submission that could not be tested in cross-examination, because neither cousin appeared at the hearing. Although an unsigned statement, purportedly from one of DGBK’s cousins was taken into evidence, the Tribunal affords it little weight. There is no corroborating evidence in the statement for which ‘jobs’ or other contributions the cousins rely on DGBK for. Nor is it clear how some of the claims made in the statement about DGBK are within the personal knowledge of the author, or in relation to the practical support that may be offered to DGBK if he is released. No explanation was provided for the absence of any current evidence from the second cousin. While it can be inferred that DGBK may derive some practical and emotional support from his cousins, it cannot be said that his removal would cause substantial practical or emotional hardship to them.
(b)The Friend. The Tribunal is concerned at the inconsistencies between the friend’s written and oral evidence. After stating on a number of occasions he had not spoken to DGBK for a year, the friend changed his evidence mid-stream after being reminded it was at odds with the claim in his statement that he speaks to DGBK by telephone ‘once every month or two.’ The Tribunal was unpersuaded by the friend’s explanation that this inconsistency arose because he ‘had just come back from work’ and was very tired. While the friend’s written evidence also states that he knew ‘exactly what DGBK was found guilty of,’ that was not apparent from his responses to questions during his oral evidence. The Tribunal also found his evidence about helping DGBK find a job, and providing financial assistance to be very general and unsupported by corroborating evidence. For example, he had not yet spoken to the manager he claims will be willing to provide DGBK with employment. The Tribunal found the evidence from DGBK’s friend to be imprecise, inconsistent and generally unimpressive. It is consequently afforded little weight.
(c)CARAD. The letter from CARAD is not a first person account of the author’s interaction with DGBK, but relates to the interaction one of CARAD’s volunteers has had with DGBK. The letter refers to DGBK having committed a single offence, which is factually incorrect. Given the general nature of the letter, its reliance on the interaction of others with DGBK, the factually-incorrect reference to a single offence, and the inability to test any of the information submitted in the letter through cross-examination, the Tribunal affords the letter minimal weight.
(d)DGBK’s former Partner. The Tribunal notes the reference in DGBK’s statement to a former relationship with a man in Australia, who he now claims to be separated from.[103] That would seem to represent a further reduction in his previous ties to Australia, although there is no current evidence from the former person before the Tribunal.
[101] Exhibit R1, 848.
[102] Ibid, 100.
[103] Exhibit A1, 4 [35].
Most of DGBK’s direct family is in Pakistan. The relationships he currently relies upon (two cousins and a friend) were previously in existence, but did not prevent his social isolation, depression and criminal offending. Neither cousin gave oral evidence at the hearing and there is one unsigned statement, purportedly from one of them. The evidence does not support DGBK’s claim that he ‘has extremely strong ties to the Australian community in the form of his cousins.’ Nor do the other associations he relies upon reflect strong and durable ties within the meaning of the Direction. To the contrary, DGBK has few friends in Australia and the Tribunal notes his evidence that a relationship with a former partner has now ended. The Tribunal finds he has relatively weak ties to the Australian community, which are comparatively similar to those that existed at the time of his criminal offending. In those circumstances the risk that further social isolation and depression may re-emerge is heightened. That elevates the concerns raised in the Risk to the Australian community section of these reasons.
The Tribunal finds that the relatively weak ties DGBK continues to have with the Australian community weighs neither for nor against revocation.
Tribunal consideration: Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that Australian business interests will be affected by a decision not to revoke DGBK’s visa cancellation. This consideration weighs neither for nor against revocation.
Tribunal consideration: Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal has noted the victim impact statements in evidence,[104] coupled with the Court’s acceptance of the adverse effects of DGBK’s offending on the children involved. In the absence of any direct evidence from the victims of DGBK’s offending or their families, however, the Tribunal finds this consideration weighs neither for nor against revocation.
[104] Ibid, 48-49, [50]-[53]; 70 [8]. Victim Impact Statements are at Exhibit R2, 996-1009.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in that country.
DGBK left Afghanistan when he was a young boy. He is now a young adult and there is no substantial language or cultural barrier to his repatriation. He has no diagnosed medical or psychological conditions; nor is he taking any medication.[105]
[105] Ibid, 101.
Given that DGBK is a person to whom Australia owes protection obligations, the impediments of repatriation are clearly apparent from the findings of his ITOA.[106] DGBK is a refugee within the meaning of Australia’s protection obligations. There is no evidence before the Tribunal of any support that he may be able to draw on in Afghanistan, or from his mother, siblings or other family network in Pakistan. His concerns understandably extend beyond a fear of convention-related harm, to harm arising from an inability to access practical or emotional support in a country he last saw as a young boy. Notwithstanding a dearth of persuasive evidence from his cousins in Australia, the Tribunal accepts he would be separated from them, where he may derive a measure of emotional and practical support.
[106] Ibid, 351-371.
For the reasons outlined above, this consideration weighs strongly in favour of revocation.
Any Other Considerations
No additional considerations were advanced by the parties or identified by the Tribunal as relevant to the specific circumstances of DGBK’s application.
CONCLUSION
DGBK does not pass the character test and his visa was liable for mandatory cancellation under s 501(3A)(a)(i) of the Act. In determining whether the conditional discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of his case.
The two relevant primary considerations, Protection of the Australian community and Expectations of the Australian community, weigh strongly against revocation. These considerably outweigh Australia’s non-refoulement obligation and Extent of Impediments if removed, which strongly favour revocation.
The influential weight of evidence supports a finding that there is not ‘another reason’ why the decision to cancel DGBK’s visa should be revoked.
DECISION
It follows that the Tribunal affirms the decision under review.

119.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 27 February 2019

Date of hearing: 18 and 19 February 2019

Counsel for the Applicant: Ms Julie Zhou

Solicitors for the Applicant:

Advocate for the Respondent:

Refugee Legal

Mr Chris Brinley

Solicitors for the Respondent:

Clayton Utz

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Citations

DGBK and Minister for Home Affairs (Migration) [2019] AATA 243

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104

Date of hearing:	18 and 19 February 2019
Counsel for the Applicant:	Ms Julie Zhou
Solicitors for the Applicant: Advocate for the Respondent:	Refugee Legal Mr Chris Brinley
Solicitors for the Respondent:	Clayton Utz