DKCQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2025] ARTA 219
•14 March 2025
DKCQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 219 (14 March 2025)
Applicant/s: DKCQ
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/10796
Tribunal:General Member S. Fenwick
Place:Melbourne
Date:14 March 2025
Decision:The Tribunal affirms the decision under review.
...........................[SGD].............................................
General Member S. Fenwick
Catchwords
MIGRATION – mandatory cancellation of visa – national of Pakistan – Class BB Subclass 155 Resident Return visa – failure to pass character test – whether another reason mandatory cancelation should be revoked – Ministerial Direction 110 applied – serious sexual offending – ties to Australia and expectations of the Australian community considered – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND
DKCQ applied on 23 December 2024 for review of a decision of a delegate of the Respondent Minister not to revoke the mandatory cancellation of his Resident Return (Class BB) visa. The Applicant’s visa was subject to mandatory cancellation under the Migration Act 1958 (Cth) (the Act) on account of him failing the character test due to having a substantial criminal record.
The Applicant arrived as an unauthorised maritime arrival in 2012, aged 19. He is a citizen of Pakistan and was granted a Protection Visa after arrival on the basis of his Shia faith. DKCQ’s parents and seven siblings remain in their home district in the north-west of Pakistan, and the Applicant supported them financially until his offending.
DKCQ’s criminal record is confined to a single conviction for the sexual assault of a child aged under 16. The Applicant pleaded guilty to this offence, and was sentenced to a term of imprisonment of three years and three months. He has recently become eligible for parole.
The Applicant was represented until shortly before the hearing. He lodged a Statement of Facts, Issues and Contentions (ASFIC) together with a bundle of documents including country information, a statement, references from two friends, and documents relating to his time in prison (AB). The Respondent lodged documents under s 500(6F) of the Act (G), supplementary G documents (SG) comprising material obtained under summons, and a Statement of Facts Issues and Contentions (RSFIC).
DKCQ gave evidence at the hearing assisted, at times, by an interpreter in the Pashto language. His recent referees, Mr A and Mr H, also gave evidence at the hearing.
LEGISLATION
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa where they do not pass the character test because of the combined operation of subsections 501(6) and 501(7). Here, as DKCQ has been sentenced to a term of imprisonment of 12 months or more he is considered to have a substantial criminal record, and therefore does not pass the character test.
Section 501CA(4) of the Act provides that this mandatory cancellation may be revoked where a person passes the character test, or where there is another reason the decision should be revoked. This is a broad test, but I am to have regard to Direction No. 110 (issued under s 499 of the Act) as a source of guidance. I will refer in my reasons to the various relevant factors identified. Considerations under the Direction are to be informed by the following principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
I must first be satisfied that the Applicant fails the character test. Reference to the national criminal history report demonstrates that DKCQ has a substantial criminal record, as defined in the Act (G6). Accordingly, the issue to be determined is whether there is another reason that the mandatory cancellation decision should be revoked.
PRIMARY CONSIDERATIONS
There is no evidence in this matter that the primary considerations Family violence committed by the non-citizen and Best interests of minor children in Australia affected by the decision are engaged. Accordingly, these two considerations weigh neutrally.
Protection of the Australian community
The Nature and seriousness of the conduct
The sentencing remarks of a judge of the County Court in September 2024 (G7) provide pertinent information about DKCQ’s offending. The victim was an 11 year old girl living in out-of-home state care who was walking down a street late at night having alighted a train. The Applicant was driving past and did a U-turn to approach the victim, who entered his car on the offer of cigarettes. They smoked in the back seat at a nearby park and then the Applicant drove the victim to his home and parked in his garage, at one point telling her to hide so as not to be spotted by a housemate who entered the garage.
DKCQ then undressed and rubbed his penis over the victim’s vagina, through her clothes, and masturbated to ejaculation, which the Applicant wiped off with a tissue. The victim stated that DKCQ gave her $50 for vapes and then drove her back to the station, where she reported the incident and was assisted by police and her carer. DKCQ was identified through phone records and was arrested at his home some two weeks after the incident. He provided certain answers to police inconsistent with the facts as found, including that the victim provided a higher age. Forensic examination of clothing assisted in associating the Applicant with the offence.
The sentencing judge stated there ‘is a real seriousness’ to the offending, and accepted the victim was vulnerable, added to by her being in residential care (albeit unknown to DKCQ). That is, the Applicant ‘as an adult male, took advantage of a young and vulnerable child’ for his own sexual gratification. The judge concluded that the objective seriousness of the offence fell in the middle range, carrying a standard sentence length of four years. The Applicant was then sentenced to a term of three years and three months, with a two year non-parole period. The conviction also resulted in mandatory registration of DKCQ as a sex offender for eight years.
DKCQ acknowledged in his evidence the elements of the offence as set out above, but denied giving the victim money. He stated in later submissions that his original denials were a result of being confused and nervous.
The Applicant’s submissions acknowledge that the offending is considered to be very serious under the Direction (ASFIC [45], a position also adopted by the Respondent (RSFIC [41]).
The submissions of the parties are consistent with the guidance of the Direction. Crimes of a sexual nature against women or children are viewed as very serious by the Australian Government, regardless of sentence imposed (8.1.1(1) a) ii). In any event, the sentence imposed of over three years’ imprisonment is a substantial sentence, notwithstanding it being slightly under the standard sentence, reflecting the objective seriousness of the crime (8.1.1(1) c)).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The sentencing judge (G7) also took account of a psychologist report tendered on DKCQ’s behalf, prepared by Ms Marlese Bovenkerk. Parts of this report are cited in the Submission on behalf of the Accused found in the materials lodged under summons (SG2, 93), but the report itself was not before me. The judge noted an assessment by Ms Bovenkerk that DKCQ was at an above average risk of re-offending and was at a moderate risk of sexual recidivism. Also noted were the report’s identification of protective factors being lack of criminal history, absence of substance abuse and lack of criminal or antisocial attitudes.
The judge also noted Ms Bovenkerk’s view that lack of prior intimate relationships ‘was noteworthy and an area that would be a significant focus for treatment in order to provide [DKCQ] with the tools and strategies to increase confidence and the capacity to establish appropriate romantic relationships’ [23]. The judge further noted a diagnosis of adjustment disorder and major depressive disorder, no prior history of mental health concerns, and that the Applicant had refused pharmacological treatment. Reference is also made to DKCQ’s expression to Ms Bovenkerk of some disgust and shame in relation to the offending, some victim empathy, and acknowledgement of impact.
I quote here the additional finding of Ms Bovenkerk in the summons material: ‘[i]f [DKCQ] were to engage in psychological intervention to address the criminogenic risk factors identified within the current assessment, his risk of reoffending would be further mitigated’.
In his recent written statement (AB), DKCQ states that he accepts responsibility for his actions, understands the impact on the victim, and that he is embarrassed and sorry for his actions [16]. He also states that at the time of the offending, he was depressed and had severe anxiety from concern about his family, but this does not excuse his behaviour [18].
In this statement, DKCQ explains that due to time already served, he became eligible for parole in December 2024, following a recommendation for parole planning by the Adult Parole Board in October [15]. The Applicant also states that he is awaiting assessment in respect of any additional programs that he may need to undertake.
DKCQ sets out in some detail his history of high school education and several jobs, and states that he would often work seven days a week prior to his imprisonment [8]-[11]. The Applicant also states that he regularly attended mosque and religious commemorations and was involved with a Shia organisation [12]. DKCQ sets out two lengthy lists of personal development programs and vocational courses undertaken while incarcerated, and describes his prison employment [19]-[22].
The Applicant states that he has attended counselling with mental health nurses and is physically active and remains substance free [23]. DKCQ intends to return to previous share accommodation if released, has skills and experience necessary to find work, and a network of friends who can support him [25].
DKCQ gave evidence consistent with the statements summarised above. He agreed that he had not accepted medication for his mental health, on the basis that he wishes not to have any substances in his body. The Applicant stated that he would undertake any recommended treatment in future were he to obtain a visa. DKCQ stated further that he understood the nature of his reporting obligations as a registered sex offender, including the need for parental consent for any contact with children. He also explained his strong motivation to be in a position to continue to provide support to his family in Pakistan.
Both witnesses spoke at the hearing to their brief written statements (AB). Mr A confirmed that he expected DKCQ to live with him upon release, but was otherwise only generally informed of the Applicant’s offending. Mr H exhibited a more detailed understanding of DKCQ’s offence. Both gentlemen, in general, attest to the Applicant’s good character. Mr H was clear that the conduct was uncharacteristic, and that he had previously enjoyed close engagement with DKCQ, as did his family and children.
I note the following arising from summons material:
(a)numerous certificates demonstrate the Applicant’s participation in programs described in his statements (SG1, 39-48);
(b)a Case Management Review Committee Parole Application Report identifies that DCKQ is at a low risk of general offending, notes that no updated sex offender risk assessment has been conducted, and affirms his progress toward parole planning at the earliest eligible date (SG1, 75-77);
(c)a report of behaviour describes the Applicant’s attitude and behaviour in prison as excellent (SG1, 78-79); and
(d)DKCQ was scheduled for further assessment by Forensic Intervention Services, which may result in recommendation for participation in a program (SG1, 81).
For the Applicant, it is submitted that he is not a real risk of reoffending because of the isolated nature of the offence, and has undertaken numerous courses addressing personal growth and expanding his skills (ASFIC [51]-[54]). It is also contended that the Applicant will seek assistance if required, and will have both reporting obligations as a sex offender and on parole which will provide a framework to ensure he does not offend, and receives appropriate support [55]. The submissions also refer to the sentencing judges observations about rehabilitation, positive observations in parole materials, and good conduct while incarcerated [57]-[60].
Finally, it is submitted that DKCQ has identified plans for his release, including accommodation, and that given his remorse and social network, the future risk to the community is low.
The Respondent’s oral and written submissions focussed primarily on the findings of Ms Bovenkerk, while also acknowledging DKCQ’s remorse, and efforts toward rehabilitation. It is contended, however, that DKCQ has not undertaken any offence-specific programs (RSFIC [47]). In these circumstances, it is submitted that he should be considered to be an ‘above average’ risk of reoffending, and that this consideration weighs significantly against revocation [48]-[49].
This consideration requires me to have regard to the Government’s view that the Australian community’s tolerance for any risk of future offending becomes lower as the seriousness of harm increases (8.1.2(1)). The harm from some forms of conduct may be so serious that any risk may be unacceptable.
I must, therefore, first consider the nature of harm from any reoffending (8.1.2(2) a)). While DCKQ’s offending is isolated, it is the only indicator that there is of what might occur upon any reoffending. For this reason, it follows that reoffending of a similar kind is likely to cause significant harm to any future victim of sexually based crime.
I must also consider its likelihood, taking account of any evidence on the risk of reoffending, as well as evidence of rehabilitation achieved by the time of the decision (8.1.2(2) b) i-ii). The Direction provides that I give appropriate weight to evidence from independent and authoritative sources (7(1)). While the Respondent broadly defers to the assessments of Ms Bovenkerk, it appears that DCKQ has recently been assessed at a lower level risk of general offending than at the time of sentencing. This may well be a reflection of the overwhelmingly positive body of material concerning his conduct and activity during time in prison.
The more challenging issue is whether Ms Bovenkerk’s earlier finding that the Applicant is at a moderate risk of sexual reoffending stands. Here, I consider the Respondent correct to point to the absence of offence-specific programs, and it is also apparent that DKCQ is still pending a formal assessment of programs required (if any) for his parole. I accept that a number of certificates evidence DKCQ’s participation in programs related to communication, respect, and relationships. He was not questioned on his learnings during evidence, but I consider it reasonable to conclude given his candour and demeanour, as well as the reports of conduct in prison, that the Applicant has a good understanding of how and why his past behaviour was inappropriate. Given the lack of any more specialised professional opinion, it is not clear how far this may go to address the recommendation of Ms Bovenkerk about the need for psychological intervention.
I also accept that the evidence overall demonstrates that DKCQ has the education, skills and employment background to permit him to reintegrate relatively easily into the community, and that he has the motivation to do so. It appears that he has a relatively modest social network, but I do accept that he has some friendship and support, including accommodation. These are all factors that would generally be considered protective in that they contribute to stability and certainty in his life. I also accept the Applicant’s contentions that both sex offender registration and parole, in its eventual form, are likely to offer a framework further conducive to good conduct, and further reducing risk factors for reoffending.
I find, therefore, that DKCQ is at a low risk of general offending, and that his risk of sexual offending lies somewhere between low and moderate. Given the inherent seriousness of child sexual offending, I consider the latter risk to be unacceptable.
Summary finding
I have found that DKCQ’s offending must be considered very serious, and that the consequences of reoffending would also be to cause significant harm. I have found that he is at a low risk of general offending, and between a low and moderate risk of sexual reoffending.
Taken together, I consider that these findings support an overall finding that this consideration weighs heavily against revocation.
The strength, nature and duration of ties to Australia
I have addressed the fundamental elements of the Applicant’s life story previously in these reasons. In his recent written statement (AB), DKCQ states that in September 2022 his application for Australian citizenship was approved, and then cancelled due to his offending [13]. He confirmed this at the hearing in his evidence, where he further stated that he passed the citizenship test in 2016 and then waited some years for his application to be processed. DKCQ stated that he was awaiting an invitation to a citizenship ceremony when he was arrested.
DKCQ also confirmed in evidence that he has no immediate family resident in Australia. He also gave evidence about some extended family in Australia, being what I understood to be distant cousins. While I indicated at the hearing that this information may be in breach of the ‘two-day’ rule (under s 500(6H) of the Act), I note that the Applicant answered ‘friend, cousin’ in response to a questionnaire seeking information about support upon release (SG1, 67).
The Applicant’s submissions address the length of time he has lived in Australia and his employment record (ASFIC [64]). It is also contended that he has a strong network of friends who have and will continue to be supportive, and his ties to the Shia community are also cited [65]-[66]. The Respondent’s submissions follow a similar path with reference also to the length of time the Applicant has lived in Australia, to his social network, and employment record (RSFIC [55]-[57]). The Respondent contended, having heard from DKCQ’s witnesses, that only Mr H was credible given his better knowledge of the Applicant’s offending. In summary, the Respondent submits that this consideration weighs slightly in favour of revocation.
I accept that the evidence demonstrates that DKCQ has reasonably well developed ‘other ties’ to the Australian community (8.3(2)). This is based upon his 13 years’ of residence, consistent work record, and the written and oral references provided. While concrete evidence of his social and other ties is relatively limited, I consider this to be somewhat offset by the evidence that DKCQ had applied for and been granted citizenship.
On balance I find that this consideration weighs moderately strongly in favour of revocation.
Expectations of the Australian community
This consideration restates the principle in the Direction that the Australian community expects non-citizens to obey the law. It then expresses normatively the consequent expectation of the community that the Government will not allow a non-citizen who has engaged in serious conduct in breach of the law to remain in Australia (8.5(1)). The Direction identifies particular forms of conduct for which non-revocation may be appropriate, with such serious character concerns including crimes of a sexual nature against women, children, or other vulnerable members of the community (8.5(2) c)). Such an expectation applies regardless of whether the non-citizen poses a measurable risk of reoffending (8.5(3)).
For the Applicant, it is submitted the expectation should be viewed in the context of his rehabilitation, and the isolated nature of his offending (ASFIC [69]-[70]). It is therefore contended the expectation would not result in non-revocation [72]. In contrast, the Respondent contends that the serious character concerns raised by the offending mean the expectation weighs significantly against revocation (RSFIC [66]-[69]).
I have found both that DKCQ’s offending is a very serious form of offending, and that there is a measurable risk of sexual reoffending that is unacceptable. I consider that the form of offence clearly falls within the kinds of conduct identified in the Direction as raising serious character concerns.
For these reasons, I find that this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
Legal consequences of the decision
I have noted above that DKCQ previously held a protection visa. This other consideration is framed specifically around the provision of the Act requiring detention of unlawful non-citizens prior to removal from Australia as soon as reasonably practicable (9.1(1)). Further, it is framed with respect to the non-refoulement obligation, which prevents forcible return of persons to whom Australia has protection obligations to a place where they are at risk of harm (9.1(2)).
The Direction also states that non-refoulment obligations are engaged in relation to a non-citizen covered by a protection finding, and that they cannot be removed to the country in question, even in the case of a non-revocation decision (9.1.1(1)-(2)). In a non-revocation decision, the Act prevents them applying for any class other than a Bridging R visa (9.1.1(3)).
Submissions for the Applicant focus on his fear of harm in Pakistan, and the ‘real chance’ he may otherwise face indefinite detention (ASFIC [74]-[78]). The Respondent contends, correctly, that the effect of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that DKCQ would be assessed for removal upon the conclusion of his sentence, but the protection finding prevents removal to Pakistan (RSFIC [72]). The Respondent further contends that, as a result, the Applicant would be assessed for eligibility for grant of a Bridging Visa R (BVR) and will likely remain in the community, and there is no prospect of his being detained indefinitely [73]-[74].
I consider that in the circumstances, the Respondent has correctly interpreted the legal implications for DKCQ, and accordingly this consideration weighs neutrally. However, it is not the case that grant of a BVR carries no consequences for the Applicant, and I will address this as a separate consideration below.
Extent of impediments if removed
For the Applicant the submission is again made that he fears harm upon return to Pakistan and he would face significant impediments (ASFIC [82]). The Respondent notes in its submissions that DKCQ may have mental health concerns, and accepts the likelihood of emotional and financial hardship if returned (RSFIC [78]-[79]), however, the Respondent contends that the protection finding means that there is no prospect of this eventuating.
I agree with the Respondent’s approach and accordingly find that this consideration weighs neutrally.
Impact on Australian business interests
It is submitted for DKCQ that his employment record and ongoing work and education in prison mean that he can positively contribute if he remains in Australia (ASFIC [85]). The Respondent’s position is that this consideration is not relevant (RSFIC [80]).
I do not consider that there is sufficient evidence to indicate any particular reliance by an employer upon the Applicant. On this basis, I find that this consideration weighs neutrally.
Release on bridging visa
As noted above, the Respondent contends that DKCQ is eligible for the grant of a BVR, and will likely be released into the community. I raised this with the Applicant at the hearing in order that he appreciated this as a possible, if not likely, course. DKCQ in turn submitted that release on a bridging visa would affect his mental health. He also stated that he considered it may affect his access to health services and employment. In short, DKCQ contended that a permanent visa is better for his rehabilitation overall.
There is a degree of speculation involved in considering DKCQ’s release into the community, in addition to the ongoing uncertainty about his release on parole, noted above. The main uncertainty relates to the conditions that will be applied to any bridging visa, noting of course that the Applicant is already required to comply with a reporting regime associated with his registration as a sex offender, and probably also for his parole.
Nonetheless, I consider that some weight in favour of revocation can be given to the fact that a bridging visa is temporary, and a BVR is intended also to apply pending removal. There is some possibility that removal might be to a third country, albeit this too remains a matter of speculation.
On balance I give this additional other consideration moderate weight in favour of revocation.
CONCLUSION
I have found that the primary considerations Protection of the Australian community and Expectations of the Australian community both weigh heavily against revocation. I have found that The strength, nature and duration of ties to Australia weighs moderately in favour of revocation, and the remaining primary considerations weigh neutrally.
Of the other considerations, I have found that all of the specified considerations weigh neutrally. I identified a further other consideration Release on bridging visa that weighs moderately in favour of revocation.
The primary consideration Protection of the Australian community is generally to be given greater weight than other primary considerations, and they should all generally be given greater weight than other considerations (7(2)). One or more may outweigh the others (7(3)).
The Direction provides that the safety of the Australian community is the Government’s highest priority, and it is expected that where serious character concerns arise, as they do here, that a person’s visa be cancelled. No additional tolerance arises in this matter as DKCQ has not lived in Australia from a young age, although some might arise from his otherwise generally positive contribution through employment.
However, the nature of his offending is very serious and there are very limited countervailing factors in his favour, including the impact of living on a BVR in the community. There is also a low-to-moderate risk of reoffending that is unacceptable in the circumstances. For these reasons, I consider that the general overall weighting must apply in his case and the Protection of the Australian community and Expectations of the Australian community outweigh those considerations that weigh in favour of revocation.
Accordingly, the correct or preferable decision is that there is not another reason that the mandatory cancellation of his visa should be revoked.
DECISION
For the reasons given above the Tribunal affirms the decision under review.
Date of hearing: 4 March 2024 Applicant: In person Solicitor for the Respondent: Mr Anthony Gardner Solicitors for the Respondent: Mills Oakley
0
1
1