GKYW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 4119

GKYW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4119 (21 November 2022)

Division:GENERAL DIVISION

File Number:          2022/7290

Re:GKYW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date of decision:               21 November 2022

Date of written reasons:        1 December 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of Class WE Subclass 050- Bridging (General) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – where Applicant committed offences as a minor but was sentenced when he became an adult- consideration of possibility of indefinite detention-decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Penalties and Sentences Act 1992 (Qld)
Regulatory Offences Act 1985 (Qld)
Youth Justice Act 1992 (Qld)

Cases

Ali v Minister for Home Affairs (2020) 278 FCR 627
Minister for Home Affairs v Buadromo (2018) FCR 320
Minister for Home Affairs v Omar (2019) 272 FCR 589
Plaintiff M1 v Minister for Home Affairs (2022) 400 ALR 417
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10

Secondary Materials

Australian Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, (14 April 2020)

Direction No. 79- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (28 February 2019)

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

Table of Contents

Introduction and Background

Legislative Framework

Primary Consideration 1 : Protection of the Australian Community

Primary Consideration 2: Family violence

Primary Consideration 3: The best interests of minor children in Australia

Primary Consideration 4: Expectations of the Australian Community

Other Considerations

Conclusion

Decision

REASONS FOR DECISION

Senior Member Theodore Tavoularis

1 December 2022

introduction and background

1. GKYW (‘the Applicant’) is a 21-year-old male, born in Tehran, Iran in July 2001. He arrived in Australia (Christmas Island) on 8 November 2011[1] as an unlawful maritime arrival. He was granted a Class WE Subclass 050 – Bridging (General) visa (‘the visa’). His movement history confirms he has not departed Australia since his arrival.[2]

   [1] G documents (G1-G17), G12.

   [2] R1, p 91.

2. He has compiled a not-insignificant history of offending in Australia. As a juvenile he was convicted of four offences, all of which were punished by non-custodial sentences. As an adult he has convictions for eight offences that attracted a cumulative head custodial term of six and a half years. His offending history can be summarised as follows:

   Convictions as a juvenile

Court	Date	Offence	Outcome
Brisbane Children’s Court	17 November 2017	Unauthorised dealing with shop goods (maximum $150)[3]	No conviction recorded; reprimanded
Richland’s Children’s Court	28 February 2019	Stealing[4] Stealing[5] Receiving tainted property[6]	On all charges: no conviction recorded. Restorative justice order within 12 months
Convictions as an Adult
Brisbane Children’s Court of Queensland	13 September 2019	Rape[7]	Conviction recorded Sentenced to detention period: 5Y
Brisbane Children’s Court of Queensland	13 September 2019	Indecent treatment of children under 16[8] Carnal knowledge of children under 16 years (and attempts) (2 charges)[9] Indecent treatment of child under 16 (take photograph etc.)[10] Extortion with intent to gain benefit with threat of detriment (2 charges)[11] Distributing child exploitation material[12]	On all charges; Conviction recorded. Sentenced to detention period: 18MO All terms of detention to be served concurrently To be realised from custody after serving 50% of the detention order.

[3] Regulatory Offences Act 1985 (Qld), s 5(1)(c).

[4] Criminal Code Act 1899 (Qld), s 398.

[5] Ibid.

[6] Ibid, s 433(1).

[7] Ibid, s 349(1).

[8] Ibid, s 210(1)(a).

[9] Ibid, s 215(1).

[10] Ibid, s 210(1)(f).

[11] Ibid, ss 415(1)(a)(i)-(b).

[12] Ibid, s 228C(1)(b).

1. In terms of procedural history, the Applicant received notice on 2 March 2020 that his visa had been cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act). On 10 March 2020[13] the Applicant sought revocation of this mandatory cancellation decision and he provided written submissions with accompanying evidence in support of that request. This request was received by the Department of Home Affairs (‘the Department’) on 27 March 2020.[14]There followed, on 26 August 2022, a decision pursuant to s 501CA(4) of the Act to not revoke the original mandatory cancellation decision.

   [13] G8.

   [14] Ibid.

2. On 29 August 2022, the Applicant was duly notified of the decision to refuse to revoke the mandatory cancellation.[15] He then made application to this Tribunal on 6 September 2022 for review of that particular decision. The instant Hearing proceeded before me on 27 October 2022. The Hearing received both oral and written material. By agreement between the parties, I caused the written material to be reduced to an agreed Exhibit List, a correct copy of which is attached to these Reasons and marked ‘Annexure A’.[16] The sole witness providing oral evidence at the Hearing was the Applicant.

   [15] G3.

   [16] See generally Transcript, p 3, lines 46-47; p 4, lines 1-33.

   legislative framework

3. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   The Minister may revoke the original decision if:

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

   (b)the Minister is satisfied:

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

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

4. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[17]

   ‘…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…’[18]

   [17] (2018) FCR 320.

   [18] Ibid, para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31] (Collier J, with whom Logan and Murphy JJ agreed).

5. There are therefore two issues presently before the Tribunal:

   (a)whether the Applicant passes the character test; and

   (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

   Does the Applicant pass the Character Test?

6. The parties are ad idem that the applicant does not pass the Character Test.[19] Accordingly, it can be safely found that this Applicant does have a ‘substantial criminal record’ due to his being sentenced to a term of imprisonment of 12 months or more.[20] He does not pass the Character Test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   [19] A5, p 1, para [2]; R2, p 5, para [18].

   [20] ss 501(6)(a) and 501(7) of the Act.

   Is there another reason for the revocation of the cancellation of the Applicant’s visa?

7. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[21]

   [21]    Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

8. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

   Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[22]

   [22] Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

   The principles in paragraph 5.2

9. Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

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

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

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

   (5)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

   The Primary and Other Considerations

10. Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.

11. The Primary Considerations I must take into account are:

    ‘(1) protection of the Australian community from criminal or other serious conduct;

    (2) whether the conduct engaged in constituted family violence;

    (3) the best interests of minor children in Australia;

    (4) expectations of the Australian community.’[23]

    [23] Direction No 90, para [8].

12. The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:

    ‘a) international non-refoulement obligations;

    b) extent of impediments if removed;

    c) impact on victims;

    d) links to the Australian community, including:

    i) strength, nature and duration of ties to Australia;

    ii) impact on Australian business interests’[24]

    [24] Ibid, para [9(1)].

13. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:

    ‘(1) Information from independent and authoritative sources should be given appropriate weight;

    (2) Primary Considerations should “generally” be given greater weight than Other Considerations; and

    (3) One or more Primary Considerations may outweigh other Primary Considerations.’

14. I will now turn to addressing the abovementioned Primary and Other Considerations.

    primary consideration 1 – protection of the australian community

15. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

16. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (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.

17. I will consider each in turn.

    Thornton[25]

    [25] Thornton vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10.

18. This Applicant has convictions as a juvenile and as an adult. His sentencing history invites discussion about the extent to which this Tribunal can have regard to his convictions for the four property offences for which he was convicted (as a juvenile) at respective sentencing hearings on 17 November 2017 and 28 February 2019. The resulting question is whether the Full Court’s decision in Thornton restricts this Tribunal’s capacity to have regard to these convictions in circumstances where none of that offending resulted in a conviction[26] or a finding of guilt.

    [26] As will be noted from the above table at para [2] of these Reasons, respective notations of ‘NO CONVICTION RECORDED’ appear in the outcomes column on each of those two sentencing episodes.

19. In assessing the extent to which Thornton binds this Tribunal, it must be understood Thornton specifically stands for the proposition that s 184 of the Youth Justice Act 1992 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) engage the provisions of s 85ZR(2) of the Crimes Act 1914 (Cth). That said, I will, out of an abundance of caution proceed on the basis that (1) Thornton binds this Tribunal such that it cannot consider the fact of a conviction and that (2) it does not preclude consideration of the underlying conduct giving rise to the subject offending in circumstances where there is independent evidence of that conduct before this Tribunal.

20. The Respondent contends that Thornton was wrongly decided. That issue remains to be determined by the High Court of Australia in respect of which there has been a successful application for special leave and the matter is otherwise pending. My primary focus in these Reasons in assessing the nature and seriousness of the Applicant’s unlawful conduct will be on his convictions as an adult. Those convictions were for eight specific offences that came before the Brisbane Children’s Court of Queensland on 13 September 2019 when the Applicant was aged 18 years and two months.

    The nature and seriousness of the non-citizen’s conduct to date

21. The nature and circumstances of the Applicant’s unlawful conduct for which he was convicted as an adult, are fulsomely and adequately summarised at (1) the sentencing remarks of the learned sentencing Judge[27] which comprised some 21 pages and appear in the material[28] and in the Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’).[29] It suffices to say that the offending is squarely within the realm of very significant transgressions of the rights of two complainant victims aged 15 and half and 17 years at the time of offending.

    [27] His Honour Judge Moynihan KC.

    [28] R2, (Respondent’s Tender Bundle), pp 1-21.

    [29] R2, pp 6-10, paras [23]-[37].

22. There is a ready concession put on behalf of the Applicant that ‘The offences are extremely serious…’[30] During cross-examination the Applicant was taken to the ‘Statement of Facts’ submitted to the sentencing Judge and he accepted the factual circumstances of his offending as put to him. Rather than recounting the intimate details of the offending matrix, it does, to my mind, suffice to have regard to the impression taken by the learned sentencing Judge of the entirety of that offending matrix. With reference to the circumstances of the offending against the second complainant, His Honour noted:

    [30] A5, p 3, para [13].

    ‘Turning now to the criminality involved in the rape of the second complainant LR. Taken alone, it is a very serious example of the offence of rape warranting a significant period of detention.

    Each of you was involved as a principal offender in the gang rape of the complainant. The offending was premeditated.

    The complainant was misled as to the true position and your true intentions until it was too late for her to leave and she was isolated and alone in an abandoned house.

    Some of your content that this case is less serious than some to which I have been referred because the complainant was not very young: the age disparity was not great and there was no gratuitous violence. However, the complainant was a child herself.

    There was no need for gratuitous violence because the complainant was overwhelmed by the threat and menace of your combined presence. In any event, the act of rape in itself in this case was, as I have set out above, a quintessential violent act.

    It is clear that the complainant was terrified and did not consent to the acts relied upon to constitute the offences. She was helpless and vulnerable against your combined force.

    The act of rape was brutal. The experience was physically painful for her and the place and way in which the acts occurred would have amplified the horror and ensured humiliation of the complainant.

    The complainant was threatened with a knife to compel her silence. Further, [the Applicant] and [Offender B] threatened to share the video of her engaging in a sex act if she were to complain. You all showed a complete and callous lack of concern for the welfare of the child at the time of and immediately after the events. You used and abused her.

    I do not distinguish between each of you in terms of your criminality in relation to that event.

    It was not an isolated aberration. It was the culmination of a pattern of predatory behaviour. It needs to be placed in context of other criminal acts by each of you that add to the criminality and for which you must also be punished.’[31]

    [My emphasis]

    [31] R2, (Respondent’s Tender Bundle), pp 18-19.

1. With reference to the attack on the 15 and a half year old victim first victim, His Honour noted the following:

   Not long beforehand, pursuant to a common plan, each of you were involved in an

   incident with another child, TS.[sic] who was under the age of 16 years and who also was lured to that abandoned house under a false pretence, then subjected to you each doing sexual acts to and/or having sexual intercourse with her.[sic] one after the other. She did not consent to those acts.

   Each of [the Applicant].[sic] [A] and [B] as a group engaged in sexual acts and sexual intercourse with that young girl on an earlier occasion. You are each to be punished for unlawful carnal knowledge in relation to those acts of sexual intercourse with the complainant because the Crown accepts that, notwithstanding the surrounding circumstances. they could not prove that each of you did not have an honest and reasonable but mistaken belief as to her consent to that act.

   [The Applicant], you also engaged in the particularly despicable act of video-recording some of these acts with the child and later threatened to publish it in an attempt to extort her to engage in further sexual activity with you. To emphasise the threat, you sent her some of that material. That type of conduct alone can cause extreme stress and anxiety for a person.[sic] leading to a real risk that they may develop a mental illness or self-harm. That the material may be published to the World Wide Web at any time in the future is to re-victimise the complainant and causes ongoing anxiety and distress.

   There is no evidence that any of you would have desisted from the course of predatory behaviour in the absence of a complaint.[32]

   [32] Ibid, p 19.

   Paragraphs 8.1.1(1)(a)(i) and (ii)

2. I am satisfied that the Applicant’s above-described offences fall squarely within the ambit of paragraphs 8.1.1(1)(a)(i) and (ii). His unlawful conduct was undeniably violent and involved the commission of multiple sexual crimes. Further, that violent offending was perpetrated on not one, but two, children. His offending cannot be found to be other than ‘very serious’ as mandated by paragraph 8.1.1(1)(a) of the Direction.

   Paragraphs 8.1.1(1)(a)(iii) and 8.1.1(1)(b)(i) and (ii)

3. None of the Applicant’s offending involved the commission of family violence.[33] Likewise, he has not committed offences in the realms of: (1) causing a person to enter into a forced marriage;[34] and (2) offending against vulnerable members of the community such as the elderly or disabled or against government representatives or officials in the performance of their duties.[35]

   [33] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [34] Paragraph 8.1.1(1)(b)(i) of the Direction.

   [35] Paragraph 8.1.1(1)(b)(ii)) of the Direction.

   Paragraph 8.1.1(1)(b)(iii) and (iv)

4. Neither side propounds a position that the Applicant has committed unlawful conduct ‘…that forms the basis for a finding that [he] does not pass an aspect of the Character Test that is dependent on the decision—maker’s opinion.’ This component of the Direction is not relevant.[36] In a similar vein, there is no contention before me that the Applicant has committed a crime while in immigration detention or in any of the other circumstances contemplated by the Direction. This component of the Direction is also not relevant.[37]

   [36] Paragraph 8.1.1(1)(b)(iii) of the Direction.

   [37] Paragraph 8.1.1(1)(b)(iv) of the Direction.

   Paragraph 8.1.1(1)(c)

5. In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[38] (2) acts of family violence;[39] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[40] The preclusion in Paragraph 8.1.1(1)(c) does not extend to ‘violent and/or sexual’ crimes as contemplated by 8.1.1(1)(a)(i).

   [38] Direction No 90, para [8.1.1(1)(a)(ii)].

   [39] Ibid, para [8.1.1(1)(a)(iii)].

   [40] Ibid, para [8.1.1(1)(b)(i)].

6. I am satisfied that the totality of the Applicant’s conduct for which he was sentenced as an adult on 13 September 2019 did indeed involve the commission of ‘violent and sexual crimes’. The totality of custodial time he received for that offending was six and a half years. The imposition of a custodial term represents the last resort in the sentencing hierarchy. The logical extension of that premise is that a given sentence must be viewed as a reflection of the objective seriousness of the offences being punished.[41]

   [41] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].

7. The imposition of head cumulative custodial time of six and a half years upon an offender who presents to a sentencing court as an 18 year old is not an insignificant thing. The totality of custodial time imposed upon him exceeded one third of his entire life to that point. I have no hesitation in concluding that the sentences imposed on this Applicant as an adult on 13 September 2019 very strongly militate in favour of a finding that his offending has been ‘very serious, more likely extremely serious’.

   Paragraph 8.1.1(1)(d)

8. This paragraph deals with (1) the frequency of a person’s offending and (2) whether there is any trend of increasing seriousness in that offending. First, in terms of frequency, the Applicant has committed twelve offences that have been dealt with across three sentencing episodes. His first four offences were committed as a juvenile and he was sentenced for them as a juvenile. His remaining eight offences were committed as a juvenile and he was sentenced for them as an adult.

9. The totality of his offending history runs (in terms of sentencing episodes) from November 2017 to September 2019. The commission of 12 offences during an approximate two year period is surely frequent offending. Likewise, if we only look at the offending for which he was convicted as an adult, (i.e on 13 September 2019) we are taking about the commission of eight offences in a period of well under a year. On either metric, the Applicant’s offending has been frequent.

10. Second, is there a trend of increasing seriousness? If we look at the trajectory of the totality of the offending, it is undeniable that there has been a dramatic increase in the seriousness of the offending. At the first two sentencing episodes, the Applicant was convicted (as a juvenile) of four offences relating to property. His subsequent offending is dramatically more serious involving deliberate, reckless and brutal conduct towards two female child victims. Without question, there is an increase in the level of seriousness in the Applicant’s conduct if viewed through the lens of the totality of his offending.

11. If viewed through lens of the Applicant’s offences for which he was convicted as an adult, one need not look for any ‘trend of increasing seriousness’. It is very serious from the outset. In other words, all eight offences for which he was convicted (as an adult) on 13 September 2019 are very serious. The only possibly more serious type of offending one could conceive of would involve either a murder or attempted murder of a victim.

12. I am satisfied that the Applicant’s offending has been frequent and, when viewed through the lens of his entire history, there is an obvious trend of increasing seriousness. Otherwise, his offending punished on 13 September 2019, was serious from the outset. This paragraph militates strongly in favour of a finding that his offending has been ‘very serious, more likely extremely serious’.

    Paragraph 8.1.1(1)(e)

13. This paragraph looks for any cumulative effects resulting from a non-citizen’s offending and how those effects are now informative of the level of seriousness of that person’s offending in Australia. The Applicant’s pattern of offending demonstrates three cumulative effects. First, his offences for which he was convicted as a juvenile demonstrate a failure to respect the rights of others to own and enjoy the property they have acquired.

14. Second, the Applicant committed the three property offences that came before the Richlands Children’s Court in February 2019 while he was on bail for the offences that came before the Brisbane’s Children’s Court of Queensland on 13 September 2019. This is demonstrative of a person who has failed to understand the fundamental requirement to meet the terms of a lawfully made order such as a grant of bail. In particular, he demonstrated a failure to respect the law such that he had little or no compunction in committing these property offences while on bail for the significantly more serious offences for which he was sentenced on 13 September 2019.

15. Third, and most significantly, the Applicant’s conduct has had a very significant impact on its two female victims. There is before the Tribunal a victim impact statement from the (then) 15 and a half year old victim together with a further statement from her mother. These two statements formed part of the bundle of material placed before the learned Judge who sentenced the Applicant on 13 September 2019. It is worth quoting each statement in full. First the statement of the victim reads thus:

    ‘To who may concern

    This has effected me in many different ways, such as having panic attacks when i am out or out in general going and coming home from school. I am always in constant panic not knowing if i am safe of being followed. Life for me is a constant worry i am having trouble concentrating on my school work as i am now easily distracted. My goal of graduating and getting a job now seems difficult for me to archive. It’s now hard for me to sleep well some nights. I am on guard when see members of the opposite sex walking down the street making me feel uncomfortable. The choice wasn’t mine to give myself has been taken away from me which is sad. My interaction with people has been changed by this experience, am not as outgoing as i use to be and i don’t feed like i am the same people i was a few years ago. Even though it shouldn’t of happen it now changed my impression of men. Are all men the same ?

    Thanking you [Victim TS]’[42]

    [Errors in original]

    [42] R2, p 39.

16. The mother’s statement reads thus:

    ‘To whom may concern

    Since this has happened to my daughter [Victim TS] i am in a constant worry when she is out she doesn’t answer he phone straight away or if she’s late i instantly think the worst and get very bad anxiety. I go to bed thinking of what has happen and cry myself to sleep and make up with the same thoughts. And not knowing the outcome of it all what happens if they see her on the street ec] would they do anything i don’t know. It’s a ongoing worry and is in my mind 24/7. She is not the same person anymore i hate what they have taken from her. I now have been suffering anxiety and depression which really confuses my thoughts since this has happen to my daughter. Life for me will never ever be the same. What they have taken from her will never ever be regained. Why wasn’t i there to protect her? I am her  mother. I was hope life gets easy as time goes on.

    Thanking you [mother of Victim TS]’[43]

    [Errors in original]

    [43] Ibid, p 40.

17. Even if we only take into account the third cumulative effect of the Applicant’s repeated offending, I am satisfied that this paragraph 8.1.1(1)(e) militates strongly in favour of a finding that his offending has been ‘very serious, more likely extremely serious’.

    Paragraph 8.1.1(1)(f) and (g)

18. There is nothing in the material before me indicative of the Applicant providing false or misleading information to the Department, including by not disclosing prior criminal offending. Similarly, the material does not contain any reference to the Applicant’s receipt of any formal warning about the consequences of further offending on the Applicant’s visa status entitling him to remain in Australia. Both of these paragraphs are not relevant.

    Conclusion about the nature and seriousness of the Applicant’s conduct

19. I have sought to apply each of the relevant paragraphs appearing at paragraph 8.1.1(1) of the Direction. Having regard my findings about paragraphs 8.1.1(1)(a)(i) and (ii), plus paragraphs 8.1.1(1)(c), (d) and (e) of the Direction, I am of the view that the conduct of the Applicant that came before Brisbane Children’s Court of Queensland for sentencing on 13 September 2019 has been truly dreadful. There is only one characterisation for it and that is that it has been of a ‘very serious, more likely extremely serious’ nature. I so find.

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

20. Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

21. Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen, whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

22. I again refer to the factual milieu of the Applicant’s truly dreadful offending that came before the Brisbane Children’s Court of Queensland on 13 September 2019. There is little or nothing that can be said against the proposition that were he to re-commit any of those truly dreadful offences, there would result physical, psychological and quite conceivably, catastrophic harm to its victim(s). If he were to re-commit the property offences he committed as a juvenile (and sentenced as a juvenile), victim(s) would suffer financial/economic harm.

23. There is no need to itemize the specific acts perpetrated by the Applicant (and his co-offenders) against the two child-victims. It suffices to say that a re-commission of any of the indicia of those acts would result in harm to a victim(s) that is so serious such that any risk of the Applicant re-committing such offences is unacceptable. I concur with the Respondent’s submission in this regard and, pursuant to paragraph 8.1.2(1) of the Direction, I so find.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))

    Summary of the evidence about risk – claimed protective factors against recidivism

    The Statement of the Applicant made on 3 October 2022[44]

    [44] A4, document 1.

24. In this Statement, the Applicant says he is no longer in contact with his anti-social peer group with whom he associated prior to and at the time of his offending. He speaks of the good relationship he has developed with those overseeing him in immigration detention. He makes reference to the parole conditions he will have to meet if returned to the community some of which will require him to ‘…undertake treatment and life skill courses…’. If released back into the community, he says he will return to live with his family at Mount Gravatt ‘…at least to start with.’ Although not directly relevant, he says he is ‘…willing to agree to any conditions of community detention that might be applied by the Department of Home Affairs to my visa.’:

    ‘50.I am no longer in contact with any of my prior friends or co-offenders. I currently have one friend in detention who has been placed with me in the hotel detention whom I know and get along with very well. I have also maintained a good relationship with the detention centre officers and staff who I have a lot of respect for.

    51.I have recently been in contact with Carley who is my parole officer at Brisbane South Probation and Parole Office. Carley informed me that if I am released from detention, I will report to her and undergo a six-week assessment in regards to my probation and parole conditions, and I will then continue to report to them. Carley also said I can undertake treatment and life skill courses through them but she declined to put anything in writing because she said I am not their client until I am released from Immigration detention. (Potential parole conditions attached)

    52.If I am released, my plans are to live with my family at Mt Gravatt family home at least to start with. I hope to work with my probation and parole officer, develop life skills, participate in ongoing psychotherapy and counselling, find employment and sort out my via status in Australia. If released, I will comply with all parole conditions applied by my parole officer, and I will comply with all parole conditions applied by my parole officer, and I’m willing to agree to any conditions of community detention that might be applied by the Department of Home Affairs.’[45]

    The Supplementary Statement of the Applicant made on 24 October 2022[46]

    [45] Ibid, paras [50]-[52].

    [46] A3.

25. In this supplementary statement the Applicant purports to accept that ‘…I understand what I did and participated in can never be undone and I have enormous regrets for what I did to the two girls I affected.’ He says that he committed his offending at a time when he ‘…was immature and was involved in an extremely unhealthy group of young people.’[47] Further, he says:

    ‘2.I take full responsibility in the parts that I participated in, not only did I take advantage of them, I disrespected them and deeply hurt them and I understand that will never go away for them. No apology can fix what I did and recognising how deeply I affected the victims has caused me depression and remorse. The victims did not deserve what happened to them and I wish I could take back what I did. Looking at what I did, I am truly disgusted at my past self for doing those things. I caused harm to the victims, my family and the community.

    3.I don’t dispute the statement of facts of what I did. I pleaded guilty to all of the offences. When I participated in the sentencing process, I was honest, open and direct about my life and about the offences I had committed. I did not blame the victims and I accepted responsibility for my actions.’[48]

    [47] Ibid, p 1, para [1].

    [48] Ibid, paras [2]-[3].

26. He seeks a second chance to re-establish his life and makes reference to an intention of securing an apprenticeship in the electrical trade. He also speaks of intending to consult with his local medical officer and of a further an intention to commit to a mental health plan to properly deal with his depression and anxiety symptoms:

    ’19.Since being incarcerated I have developed maturity and understanding of life. I am not asking for forgiveness for what I have done as those are unforgivable actions made by myself, but as a person who has changed and is extremely appreciative of still being on Australian soil. I am asking for a second chance, to dedicate myself to Australia and advance my knowledge of my religion safely.

    20.If I am released, I have hopes of starting an apprenticeship as an electrician or other trade. I’m willing to do labour jobs again or any work I can find. My plan is to see my parole officer and then to see my family GP and get a mental health plan so I can see a psychologist for treatment and support of my depression and anxiety. I have a driver’s licence which will help to get me to work, to my parole appointments, to doctors’ appointments and to support my family by taking them to appointments and taking my siblings to/from school and hopefully to the beach again.[49]

    [49] Ibid, p 4, paras [19]-[20]

1. The Applicant also makes reference to his commitment to the Baháʼí faith and believes that it will ‘…guide me to the right path in life and keep me out of trouble.’ He also refers to his family as a protective factor and wants to play an active and supportive role towards his mother in the care of his two siblings who reside with her:

   ‘21.My Baha’i religion has helped me a lot in the sense of becoming more humble and appreciating life. My religion brings me uttermost peace and is my way of asking God and praying for a second chance. If released, I want to engage with people from the Baha’i faith at the Milton Baha’i centre of learning because I believe they will guide me towards the right path in life and keep me out of trouble.

   22.I have my family for support if I were to be let out, to help me get onto my feet and support me, which I am extremely grateful for. Even though I had a rough childhood, I love my family and want to support them. I can’t imagine life without them. I want to support my mother and younger siblings. I want to protect them from family violence. I know that I might not be able to be a fulltime carer to my younger siblings but I can still be there to support them and my mother and protect them. My life has been so unpredictable that I would like to take control of my future and become someone in life, someone with a purpose.’[50]

   Oral evidence of the Applicant

   [50] Ibid, pp 4-5, paras [21]-[22].

2. During his evidence in chief, the Applicant spoke of having a history of involvement with psychologists since he commenced offending as a juvenile:

   ‘MR STEELE: Okay.  And you said that you’ve spoken to psychologists.  When did you speak to psychologists?

   APPLICANT: In juvenile.  When I was in juvenile, I was talking to this psych.  And I would have meetings every week.  And we’d talk about, you know, relationships, how consent works, how sex works.’[51]

   [51] Transcript, p 9, lines 6-9.

3. The Applicant also responded to questions about his faith and how his adherence to it if released into the Australian community would act as a steadying element in terms of his recidivist risk:

   ‘MR STEELE: And if and when you are released from detention, how do you propose to follow your faith?

   APPLICANT: I’m going back to the Milton, the holy centre where I used to go with my mum.  And yes, I think that – that that’s going to lead me to a good path.  Because I used to go there with my mum every week, and we’d do gatherings and I’d read out prayers one by one.  So when I get out, I’ll be definitely going there and, you know, following my faith.’[52]

   [52] Ibid, p 9, lines 25-30.

4. In cross-examination, the Applicant was taken to the abovementioned victim impact statement of the first victim and he appeared to express some measure of remorse, regret and realization of the extent of the harm which his offending caused to that victim.

   ‘MR KYRANIS: So in the bundle that’s got the statement of facts, can you turn to page 39 please?

   APPLICANT: Yes. 

   MR KYRANIS: Do you recognise this as a copy of the victim impact statement of the first complainant in relation to the offending which I’ve just been – which we’ve just been discussing?

   APPLICANT: I’ve read that, yes.  I’ve read that before. 

   MR KYRANIS: You’ve read that before.  Do you accept that your offending caused the first victim to feel the way that she has described in that statement?

   APPLICANT: 100 per cent.  100 per cent.  I’ve read both, hers and her mum. 

   MR KYRANIS: You’ve read her mother’s statement as well on page 40 of the tender bundle?

   APPLICANT: Yes, yes.  That’s her mum’s, yes.  I read – I read both of them. 

   MY KYRANIS: Do you accept that your offending has caused the victim’s mother to feel the way that she has described at page 40 there?

   APPLICANT: Of course, yes.  Of course.’[53]

   [53] Ibid, p 27, lines 22-37.

5. Further in his cross-examination, the Applicant was taken to the issue of any rehabilitative programs he had completed, particularly those involving sexual offenders. He was also asked about whether his parents had undertaken any counselling to understand the causative factors behind his offending. He responded thus:

   ‘MR KYRANIS: You haven’t completed any programs, like sexual offenders type rehabilitation programs, have you?

   APPLICANT: No, I was – so I spoke to a program officer in jail, and she told me that I wasn’t required to do any courses, any sexual courses, anything.  But I could volunteer.  And I did want to volunteer.  I did want to do it.  I did want to do it, but in jail – the jail I was at, Wolston – if you get known, like if they know what you’re in for, you could get bashed and like die, you know?  There has been killings in there.  Recently someone got killed because of their charges in Wolston Correctional Centre.  And while I was there, like five people died.  And I didn’t want to do anything to, you know, put myself in that situation where I’d get bashed. 

   MR KYRANIS: To the best of your knowledge, have either of your parents had any counselling to understand the factors that led to your offending as it relates to you?

   APPLICANT: My parents?

   MR KYRANIS: Yes?

   APPLICANT: Have they what, sorry?  They won’t - - -

   MY KYRANIS: To the best of your knowledge, have either of your parents had any counselling to better understand why you committed these criminal offences?

   APPLICANT: I don’t think so, no.’[54]

   [54] Ibid, p 29, lines 25-44.

6. There followed (in re-examination) some further questions about the extent of psychological counselling the Applicant has received during his time in both prison and in immigration detention. This is what transpired between him and his representative:

   ‘MR STEELE:  So you remember you were asked about whether you did some sexual offender programs in prison, and you explained why you didn’t do that?

   APPLICANT: Yes. 

   MR STEELE: Now you’d said to us that you had done some psychological counselling?

   APPLICANT: Yes. 

   MR STEELE: So just where did you do the psychological counselling?

   APPLICANT: In juvenile.  Juvenile detention. 

   MR STEELE: All right.  And then what about in adult prison?

   APPLICANT: In adult prison, I didn’t really – like they came to me and said that you’re not required to do this.  Because every sex offender, like when they come to the jail, they have to do a program to get parole.  They told me I don’t have to do nothing, because my parole was court-ordered.  And they said you can volunteer.  But like I said, I didn’t want to put myself in a situation like where I could get bashed or get physically. 

   MR STEELE: Okay.  So (indistinct words) in adult prison was the sexual offenders program?

   APPLICANT: Yes. 

   MR STEELE: And that’s the one that you’ve explained the reasons why you couldn’t do it?

   APPLICANT: Yes.  If it was in juvenile, I could have probably done it, because it’s a little bit different to, you know, like adult prison. 

   MR STEELE: But in juvenile detention, you did do psychological counselling?

   APPLICANT: Yes, yes.  I saw a psych every week. 

   MR STEELE: Okay.  And in detention have you done anything like that?

   APPLICANT: I’m in a thing for psych now.  It takes ages.  I did – they did say I have to see a psych, and I’m just in line now.  I could - - -

   MR STEELE: So you’re in line, but you haven’t actually managed to do it.  Is that right?

   APPLICANT: Yes.  No, no.  I’ve seen a doctor.  I’ve seen a psychiatrist – is that what it is?  Yes, I’ve seen that.  She came to see me.  I’ve talked to a psych on the phone.  And it’s just whether – they just ask like how am I doing, my medication, how I’m coping.  Nothing to do with sexual offending. 

   MR STEELE: Okay.  All right.  But in terms of counselling, did you say you were on a waitlist or something, are you?

   APPLICANT: Yes, yes.  I’m waiting to see a psych, yes.’[55]

   Report of Dr Danielle Shumack[56]

   [55] Ibid, p 32, lines 41-47; p 33, lines 1-34.

   [56] R2, p 41.

7. Dr Danielle Shumack is a Senior Clinician and a clinical and forensic psychologist with the Griffith Youth Forensic Service. This service is attached to the Griffith Criminology Institute which is part of Griffith University at its Mount Gravatt campus in Brisbane. Dr Shumack’s report appears in the material and is dated 5 August 2019. It was prepared for the purposes of the Applicant’s sentencing hearing on 13 September 2019. Dr Shumack’s report is quite comprehensive and numbers some 37 pages. The report contains a detailed case history and a psycho-sexual history. Dr Shumack also provides a detailed narrative of what the Applicant told her about his sexual offending.

8. Dr Shumack’s report is impressive due to its level of detail and analytical abstraction. For example, she provides context for the emergence of the causative factors giving rise to the Applicant offending:

   ‘The capacity for sexual urges is innate in human behaviour; however, the ways in which sexuality is expressed is learned. Sexually abusive behaviour is therefore an outcome of the interaction between individual, sociocultural and situational factors. Several developmental risk factors are evident within [the Applicant]’s developmental history, including childhood exposure to gender-based and interpersonal violence and possible child sexual abuse. These vulnerabilities may have been compounded by acculturation stresses upon his arrival to Australia as an asylum seeker.’[57]

   [57] Ibid, p 60, para [71].

9. Dr Shumack was of the view that much of the Applicant’s conduct resulting in his very serious offending is the result of a confluence of negative experiences to which he was exposed as a child:

   ‘A constellation of negative developmental experiences are evident in [the Applicant]’s childhood. [The Applicant] was exposed to various forms of gender based and interpersonal violence, throughout his childhood (both in IRI and within his parents’ relationships in Australia). Research clearly indicates that the impact of children’s exposure to violence not only affect children’s physical health and safety, but also their psychological adjustment, social relations, and academic achievement. The impact of violence exposure goes beyond emotional and behavioural disorders. It affects children’s views of the world and of themselves, their ideas about the meaning and purpose of life, their expectations for future happiness, and their moral development. Moreover, the impact of violence goes beyond the period of exposure and the immediate aftermath, and sometimes occurs many years later, affecting individuals into adulthood.’ [58]

   [58] Ibid, p 61, para [72].

10. Dr Shumack was of the view that the Applicant’s commission of the very serious offences committed, as they were, in the company of a peer group is a factor that speaks to the socio-cultural context and immediate environment that spawned the offending:

    ‘The role of [the Applicant’s] individual background vulnerabilities is best understood through an analysis of their interaction with the sociocultural context and immediate environment. [The Applicant] committed his sexual offences in the company of his close peer group, the co-offenders in his offences. Multiple perpetrator rape (MPR) can be influenced by group processes which highlight the interactions between an individual’s vulnerabilities within the immediate situation context. An analysis of the offences against both complainants highlights several contextual themes that warrant attention, that may assist in understanding [the Applicant]’s involvement in the offences, including (a) the modus operandi of the offences; (b) influences of others (direct and indirect); and (c) rape supportive attitudes.’ [59]

    [59] Ibid, p 62, para [75].

11. In terms of testing methodologies she conducted to assess the Applicant’s recidivist risk, Dr Shumack subjected the Applicant to two tests. Relevantly, they comprise the (1) ‘Juvenile Sex Offender Assessment Protocol-II’; and the (2) ‘Estimate of Risk of Adolescent Sexual Offence Recidivism Version 2.0’. In terms of her ‘Overall Risk Assessment’, it suffices to say that Dr Shumack reached the following conclusion:

    ‘Taken together, structured risk assessment tools combined with clinical judgement suggests [the Applicant] presents as a moderate to high risk of sexual recidivism. In assessing risk, structured risk assessment tools should not be considered in isolation. Contextual and situational factors also account for more variance than dispositional factors in explaining human behaviour, including future predictions of sexual offending.’[60]

    [My emphasis]

    [60] Ibid, p 65, para [86].

12. Dr Shumack further opined the Applicant’s risk for future sexually abusive behaviour ‘…depends largely on the potential exposure to stressful conditions and situational opportunities to which he is vulnerable.’[61] In terms of decreasing the Applicant’s recidivist risk, Dr Shumack said ‘Factors that may decrease his risk may include interventions to address possible attitudes of male sexual entitlement. Given his vulnerability to the influence of others increasing his skills in self-control, assertiveness and social perspective training may also serve to reduce his risk of recidivism.’[62]

    [61] Ibid, p 66, para [86].

    [62] Ibid, para [88].

13. Dr Shumack urged caution in terms of reaching any concluded view about the Applicant’s recidivist risk and that the assessment tools are not always a definitive guide in terms of indicative recidivist risk:

    ‘Caution is warranted in the interpretation of [the Applicant]’s sexual offence recidivism risk assessment, as levels of risk can be subject to under and over-estimation. Therefore, these tools cannot definitively indicate whether an individual will re-offend or not, and only provide a guide for assessing probable levels of risk, based on the information available at the time of assessment.’[63]

    [63] Ibid, para [89].

14. Dr Shumack concludes her report by re-stating the Applicant’s level of recidivist risk:

    ‘Empirically guided risk assessment indicates that [the Applicant] presents an estimated moderate to high risk of sexual offence recidivism and would benefit from therapeutic, educational and preventative interventions. There are several factors, which, if successfully managed, may, reduce [the Applicant]’s risk of future sexual reoffending.’[64]

    [My emphasis]

    [64] Ibid, p 67, para [91].

15. Significantly, Dr Shumack was of the view that ‘Without adequate and consistent supervision, the efficacy of treatment interventions may be compromised, and [the Applicant] may be at an increased risk of reoffending.’[65] In terms of those treatment interventions, Dr Shumack said:

    ‘Sexual offence specific interventions may include: exploration of the origins and maintenance of beliefs that legitimise sexual coercion including the impact of key developmental experiences; education regarding appropriate and inappropriate sexual expression and behaviour; facilitating the development of healthy and appropriate relationship skills; challenging attitudes of sexual entitlement in relationships; perspective taking and victim empathy; safety planning to more effectively assist [the Applicant] with the self-management strategies to cope effectively within high risk situations.’[66]

    Report of Mr Chafic Awit[67]

    [65] Ibid, para [94].

    [66] Ibid, p 68, para [97].

    [67] A3, Report of Mr Awit.

16. Mr Chafic Awit is a Registered Psychologist. His report dates from 22 October 2022 and appears under the letterhead of Bridges Psychology Clinic. Mr Awit conducted his examination of the Applicant by way of audio-visual link. His report, at seven pages in length, is comparatively shorter than that of Dr Shumack. He diagnoses the Applicant with ‘Generalised Anxiety Disorder; and Major Depressive Disorder.’[68] Mr Awit took a family history from the Applicant together with an employment history, an alcohol and drug history and a psychosocial history.

    [68] Ibid, p 1.

17. In terms of psychometric testing, Mr Awit said the following in his report:

    ‘Psychometric Testing:

    The final diagnosis contained in this report, is not based on the Psychometric Testing. The results of Psychometric Testing, are combined with the history gathered from the client, the symptoms reported, an analysis of the offending behaviour, an analysis of the DSM –V Diagnostic Criteria for the diagnosis of a condition, followed with the analysis of the consistency of results between this multi-modal assessment, by a trained psychological professional, to gain an accurate picture of the client.’[69]

    [69] Ibid, p 4.

18. In terms of a concluded opinion of the Applicant’s recidivist risk, Mr Awit opined thus:

    ‘The writer is of the professional opinion that [the Applicant]’s risk of reoffending falls in the lower ranges. He accepts full responsibility of his actions, and has been punished for this over and over again since 2018. He has spent eighteen (18) months on bail with strict conditions and over three and half (3.5) years in some form of detention. The fear of having to return to a country where he fled from is acting as a further deterrent for [the Applicant] to reoffend.’[70]

    [70] Ibid, p 6.

19. In terms of future treatment recommendations, Mr Awit – somewhat contrary to the views of Dr Shumack – was ‘…not of the opinion that [the Applicant] requires any specific treatment for his sexual offending.’[71] Be that as it may, he was of the view that if returned to the community, the Applicant should follow a defined treatment plan which he described thus:

    [71] Ibid.

    ‘Treatment Plan;
    When released from Detention;

    ·    [The Applicant] to go under the care of a suitable Psychologist for a period of no less than twelve (12) months. Individual Psychological Sessions should commence fortnightly initially, and once further improvement is seen, the period between sessions will extend, as determined by the Psychologist. If further treatment is warranted, this will continue.

    ·      [The Applicant] to adhere to all treatment requests

    ·    [The Applicant] to receive Cognitive Behaviour Therapy; (aimed at Anxiety reducing, and emotional regulation) with the Psychologist.

    ·   Therapy to also focus on;

    - Identifying high risk situations that can cause relapse of symptoms

    - Learning to recognize when negative emotions are building up

    - Finding a way to reduce exposure to high-risk situations

    ·   [The Applicant] to receive skills to help cope with stress; this will take the form of being provided with stress reducing techniques.

    ·   [The Applicant] to receive problem solving skills’[72]

    [Emphasis in original]

    [72] Ibid, pp 6-7.

    Summary of findings around recidivist risk

20. To my mind, the material – both oral and written – before the Tribunal says the following about the Applicant’s recidivist risk. First, it is necessary to resolve whatever tension there may exist between the respective reports of Dr Shumack and Mr Awit. The former was prepared for a sentencing hearing in September 2019. The latter was prepared for this Hearing. That said, the report of Dr Shumack (of some 37 pages) is, to the best of my understanding of it, at a very different level of analysis and detailed abstraction compared to that of Mr Awit. I am of the view that Dr Shumack’s report much more fulsomely details the Applicant’s vulnerabilities and resulting predispositive factors behind his offending.

21. Mr Awit did not conduct any testing methodology on the Applicant. His psychometric testing involved taking the history provided to him by the Applicant, plus the symptoms reported to him by the Applicant and, as it were, superimposing those two elements onto the DSM-V Diagnostic Criteria referrable to his diagnoses of the Applicant’s generalised anxiety disorder and major depressive disorder. On the other hand, Dr Shumack applied two specific testing methodologies to the Applicant and subsequently reached her stated level of the Applicant’s recidivist risk. While neither clinician was called to give evidence at the Hearing before me, I am of the view that the opinions and findings of Dr Shumack are to be preferred over and above those of Mr Awit.

22. Therefore, the starting point in terms of my findings about the Applicant’s recidivist risk must be based on Dr Shumack’s assessment of the Applicant representing a moderate to high risk of sexual recidivism. On the one hand, Mr Awit says the Applicant does not require any specific treatment for his sexual offending. But on the other, Mr Awit goes on to provide a detailed treatment plan which seems exclusively predicated on the DSM-V Diagnostic Criteria referrable to his diagnosis of the Applicant’s conditions. Dr Shumack specifically points out that while treatment modalities of the type nominated by Mr Awit would assist the Applicant, she (Dr Shumack) actually identifies ‘sexual offence specific interventions’ which I have quoted above from her report. The Applicant’s very serious offending has been patently sexual in nature. I am uneasy about following a report from a clinician (in this case Mr Awit) telling me that the Applicant does not require any specific treatment for his sexual offending.

1. Second, the Applicant seems to readily acknowledge the truly appalling nature of his offending. He appears to understand its de-humanising and degrading aspects are elements of his offending that the Australian community regards as unacceptable. He seems to want to express remorse and regret for his crimes and such remorse should be taken at face value. He also seems to have understood the ‘concertina’ effect that his offending has had on the rest of his family. In a physical sense, it has physically estranged him from his siblings and has placed a greater load on his mother to care for his two siblings that reside with her. He has understood the extent to which his offending and consequent removal from the community has severely interrupted his own career either as a prospective professional sportsman or as a tradesman.

2. The resulting question becomes: has the Applicant understood that he needs on-going treatment and management of the causative factors behind his past offending? The answer to that question may be stated as ‘yes’. However, the difficulty with that answer is that the Applicant’s engagement with any therapeutic or clinical process is only in its formative stages. In his written material, he spoke of an intention to engage with such a process and, although well-intended, this evidence goes no higher than an intention to do so rather than him having done so and consequently being able to demonstrate the benefits of having done so.

3. Such a finding is augmented by the views and opinions of Dr Shumack who refers to the Applicant not only undertaking specific interventions but, in addition, points out that without adequate and consistent supervision, the efficacy of treatment interventions may be compromised, and the Applicant may be at an increased risk of re-offending. So, while the Applicant talks about an intention to engage with such treatment modalities, any such stated future intention (together with whatever interventions he may have received to date) does not now safely lead me to the view that his recidivist risk is, as Mr Awit suggested, ‘in the lower ranges’. The more logical and safer finding is that the Applicant’s recidivist risk remains at or near the level identified by Dr Shumack but that such level of risk may be moderated by the Applicant undergoing specific interventions with particular reference to his sexual recidivist risk.

4. Third, as is often heard in matters of this type, the Applicant takes a position of having learnt his lesson and of there being little or no chance of offending in future due to his past compliance with bail conditions for a period of 13 months. But the blight on that evidence is the unfortunate reality that he committed further offences of stealing while on bail awaiting sentence for his very serious sexual offences. There is, to my mind, some traction in the delegate’s finding to the effect that a person’s compliance with bail is not necessarily a sign of lowered recidivist risk because the obvious alternative to a grant of bail would involve that offender serving time in custody.[73]

   [73] See also, R2, pp 11-12, para [40.3].

5. Fourth, while the Applicant’s evidence about his risk of re-offending can be received and taken at face value, he is now saying these things from a custodial position. This is not to suggest that his evidence is self-servingly false. But it is evidence that is postulated on the basis of him (1) being in a custodial environment where he has had an opportunity to consider the impact of his offending on its victims, on his family and on himself; (2) not being confronted with the inevitable strictures, exigencies and difficulties of life that impact virtually everyone in the community; and (3) not being able to demonstrate that he can avoid negative peer groups and other causative elements behind his offending in the unsupervised and unregulated paradigm of the general community. There is traction in the Respondent’s suggestion[74] that because of his removal from the Australian community on a continuous basis since September 2019, sufficient time has not elapsed for the Applicant to demonstrate a pattern of conduct that could now convincingly speak to a lowered recidivist risk, particularly in terms of sexual offending.

   [74] Ibid, p 12, para [40.6].

6. By way of a concluded finding about the Applicant’s recidivist risk, I consider it unsafe to allocate such risk as falling ‘in the lower ranges’ as suggested by Mr Awit. The safer and more logical finding must be that the Applicant’s recidivist risk falls more within the range suggested by Dr Shumack, that being a ‘moderate to high risk of sexual offence recidivism’. Given the passage of time between Dr Shumack’s report and the time of this Hearing, I am of the view (and I find) that the Applicant’s recidivist risk is, at best, of a moderate level, more likely a moderate to high level.

7. Paragraph 8.1.2(2)(c): I will, out of an abundance of caution, make reference to paragraph 8.1.2(2)(c) of the Direction. This matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.

   Conclusion: Primary Consideration 1

8. With reference to the weight attributable to this Primary Consideration 1:

   (a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious, more likely extremely serious’;

   (b)I have found that were he to re-commit any of the offences for which he was sentenced on 13 September 2019 there would result physical, psychological and quite conceivably, catastrophic harm to its victim(s). If he were to re-commit the property offences he committed as a juvenile (and sentenced as a juvenile), victim(s) would suffer financial/economic harm.

   (c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) by taking into account: (1) his claimed protective factors in the form of his religion and claimed familial support; and (2) the respective reports of Dr Shumack and Mr Awit and have found that the Applicant’s recidivist risk is, at best, of a moderate level, more likely a moderate to high level.

9. I again refer to paragraph 8.1.2(1) of the Direction and its specific reference to the notion of ‘unacceptable risk’ which is a risk that the community should not be required to tolerate regardless of other considerations. Having regard to the potential consequences of this Applicant re-committing any of the offences for which he was sentenced on 13 September 2019 together with the incomplete stage of his rehabilitation, I am safely lead to a finding that his offending has been so serious that any risk of its recurrence is indeed unacceptable.

10. My analysis of the written and oral material before me results in a finding that this Applicant represents an unacceptable recidivist risk and that Primary Consideration 1 thereby carries a very heavy level of weight against revocation of the mandatory cancellation of his visa.

    primary consideration 2: family violence

11. Paragraph 8.2 of the Direction provides: 

    (1)  The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)  This consideration is relevant in circumstances where:

    (a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    (a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    (b)the cumulative effect of repeated acts of family violence;

    (c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.    the extent to which the person accepts responsibility for their family violence related conduct;

    ii.   the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.  efforts to address factors which contributed to their conduct; and

    (d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

12. Both parties agree that this Primary Consideration 2 is not relevant to determination of the instant application.[75] I agree.

    [75] A1, p 10, paras [30]-[31]; R2, p 12, para [42].

    primary consideration 3: the best interests of minor children in australia

13. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent their interests may differ.

14. Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:

    a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e) whether there are other persons who already fulfil a parental role in relation to the child;

    f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    Identification of the relevant minor child/children

15. At the Hearing I sought to specifically identify, with the help of the Applicant’s representative, the relevant minor children referrable to this case. The Applicant’s representative agreed that the three relevant children comprise the Applicant’s three siblings respectively aged 16,  seven  and  five.[76] This position is confirmed both in the Applicant’s SFIC[77] and his Personal Circumstances Form (‘PCF’) in the latter of which the Applicant confirmed he does not have any minor children of his own[78] and that the only three relevant minor children for the purposes of this application are his abovementioned siblings.[79] The PCF further confirms (as does the Transcript of the instant Hearing) that the Applicant does not have any cousins, step-siblings or any other children with whom he maybe connected in Australia.[80] This position is confirmed in the Respondent’s SFIC.[81]

    [76] See Transcript, p 61, lines 4-31.

    [77] A1, p 10, para [33].

    [78] R1, p 66.

    [79] Ibid, p 67.

    [80] Ibid, p 69; see also Transcript, p 61, lines 18-25.

    [81] R2, p 12, para [44].

16. Therefore, the relevant minor children comprise:

    ·[Child H] – a brother, born in August 2006, currently aged 16 years;

    ·[Child A] – a brother, born in August 2015, currently aged 7 years; and

    ·[Child Ha] – a sister, born in October 2017, currently aged 5 years.

17. The Applicant and [Child H], his eldest sibling, share the same father. Their mother and that particular father separated, and the mother re-partnered and she and the new partner are the parents of the two younger siblings. [Child H] resides with his biological father. The two younger children are primarily cared for by their mother, which mother they share with the Applicant.

    The parties’ respective contentions

18. In his SFIC, there is an application of the factors appearing at paragraph 8.3(4) of the Direction. It is contended that the Applicant ‘…maintains a strong and loving relationship with all three of his biological siblings (two of whom are Australian citizens) although there is a particularly strong bond between the Applicant and his closest in age brother [Child H].’[82] It is further contended that the Applicant ‘…has maintained a close relationship with all of his siblings since their birth…’.[83] Despite the Applicant’s removal from the community since September 2019, it is contended in the Applicant’s SFIC that he has ‘…continued to maintain contact with his siblings over the phone, via video calls, and through in person visits both at the correctional centres and while in immigration detention.’[84]

    [82] A1, p 10, para [33].

    [83] Ibid, para [34].

    [84] A1, p 11, para [34].

19. Given the young age of two of his siblings it is contended that the Applicant will play a positive parental role in their lives until they attain the age of 18 years and that he has done so primarily by the provision of ‘…significant emotional support to his mother and siblings.’[85] It is further contended that none of the Applicant’s prior offending has adversely affected any of his siblings and, similarly, that any future criminal conduct by him would not adversely affect those siblings.[86] Were the Applicant removed to Iran:

    ‘…it is contended that the likely effect of separation between the Applicant and his siblings in Australia would be substantial. For example, given the closeness of the relationship between the Applicant and his brother [Child H], the applicant’s brother [Child H] would suffer substantial ongoing emotional distress and depression.’[87]

    [85] Ibid, para [35].

    [86] Ibid, para [36].

    [87] Ibid, p 11, para [37].

20. In terms of being able to communicate with his siblings if removed to Iran, it is contended that his capacity to communicate with them and/or meet up with them in Iran would be compromised thus:

    ‘It is not clear that the Applicant would be able to maintain any contact with his siblings if he was removed to Iran. It’s not clear that the Applicant would be able to support himself in Iran let alone afford access to a mobile phone or computer in order to contact his family. If the Applicant is removed to Iran, it is likely that the Applicant’s mother, father, and/or siblings would not be in any position to travel to Iran (or any other third country) to visit the Applicant because of both safety concerns in Iran and financial reasons.’[88]

    [88] Ibid, p 12, para [39].

21. Despite the fact that the Applicant’s mother already fulfills the primary parental role in relation to two of his siblings, the Tribunal has been referred to ‘The child safety plans from Queensland Child Safety evidencing that the Applicant’s mother is struggling with significant mental health issues, severe emotion [sic] distress, family violence and suicidal ideation with significantly impacts on the Applicant’s sibling’s [sic] wellbeing.’[89] The resulting contention is that if the Applicant remains physically removed from his family and/or if he is removed to Iran, it is ‘…likely to severely negatively impact on the Applicant’s mother which will then negatively impact the Applicant’s siblings.’[90]

    [89] A1, p 12, para [40].

    [90] Ibid, para [31].

22. The further resulting submission is that:

    ‘If the Applicant were able to rejoin his family unit, then the Applicant’s mother’s mental health would likely improve because she would feel less isolated and less distressed, and she would have the Applicant to provide her and her children with support and assist in looking after the children which in turn would be in the best interest of the minor children in this case.’[91]

    [91] Ibid, para [32].

23. In his PCF, the Applicant was asked to describe his relationship with each of the relevant minor children, including how often he had contact with those children and the role he played in their lives. The Applicant stated the following:

    ‘My relationship with my younger siblings is very good, they were very well taken care of when I was looking after them. I love and treat them like my children, I have saved my two younger siblings lives multiple times from their father that has a history of Domestic violence. all the incidents and me isolating them from him is in the child Protection history. I Play a big role In their life, they feel safe with me and need me. because  since I have been in custody, their father feels free to do whatever he likes, now they have been taken away by child Protection on 2 Year order and the only Person that can take custody of them is me. My Presents makes my two young siblings lives much easier and safer. they come to visit me every week. My young brother always talks about me getting out so I can be with him.’ [92]

    [Errors in original]

    [92] R1, p 68.

24. Further in his PCF, the Applicant was asked to describe any current or likely impact on the relevant children in the event of a negative outcome for him in the instant application. The Applicant stated the following:

    ‘It hasn’t had a very big impact on my younger sister becuse shes only 2 years old, but my second oldest Brother has Been crying and tell my dad he misses me, I took him to school most of the days, I bought him cloths, I used to make food for him, Its really hard for him to cape. My youngest Brother is also the same, my mum says everytime someone yells at him, he starts crying and asks where I am.’ [93]

    [Errors in original]

    [93] Ibid.

25. In his evidence in chief, the Applicant confirmed that he has the three abovementioned siblings.[94] He further confirmed that he communicates with them via FaceTime ‘every day’.[95] He went on to describe the difficulties experienced by his mother in her relationship with second husband after the Applicant’s removal from the community and how this has impacted on her capacity to parent the children:

    ‘MR STEELE:  Was your mum together with your step-father before you were sentenced?

    APPLICANT: Yes.  Just I had the – like I used to look after the kids.  And I made sure that he couldn’t see the kids.  And after I got locked up, they took the kids for two and a half years.  Because my mum would [sic] let him see the kids.  And recently – recently they got – now they told my mum, Child Protection told my mum that she has to move out of the house.  Otherwise they’ll take the kids until they’re 18.  And now she’s in – she’s in motels.  She doesn’t have a house.’[96]

    [94] Transcript, p 10, lines 1-3.

    [95] Ibid, line 5.

    [96] Transcript, p 10, lines 26-33.

1. Sub-paragraph 9.2(1)(a): this Applicant is 21 years of age. His claimed conditions of epilepsy, sciatica, depression and anxiety have minimal support from the material before this Tribunal. That said, it is worth referencing what the DFAT report has to say about the availability of healthcare services generally in Iran:

   “[2.22] Article 29 of the constitution stipulates that every Iranian has the right to enjoy the highest attainable level of health. The Ministry of Health and Medical Education is responsible for planning, monitoring and supervising health-related activities for the public and private sectors. Health care and public health services are delivered through a countrywide network, based on a referral system that starts at primary care centres in the periphery and proceeds through secondary-level hospitals in provincial capitals and tertiary hospitals in major cities. The government remains the main provider of primary health care services across the country, although the private sector also plays a significant role in health care provision, mostly through secondary and tertiary health care in urban areas. While the quality of healthcare in the public sector is of a good standard, overcrowding and doctor shortages are major challenges — Iran has 1,000 public hospitals for a population of nearly 83 million, or approximately 1.7 hospital beds per 1,000 people. Iran’s private health care system is highly regarded, and attracts patients from other countries in the region. Numerous non-governmental organisations (NGOs) are active on health issues, particularly in specialised fields. Sanctions ….and COVID-19 have placed significant strains on the local healthcare system.

   [2.23] Iran has strong human development indicators. The United Nations Development Programme (UNDP) ranks it 65th out of 189 countries in the 2019 Human Development Index (situating Iran in the high human development category). Health care is a major government priority — it spent the equivalent of 7.6 per cent of GDP on health in 2018. According to the UNDP, Iranians have a life expectancy of 76.5 years. Iran has achieved significant reductions in the rates of both under-five and maternal mortality (14.9 and 16 deaths per 1,000 live births, respectively, in 2017). According to the UNFPA, 99 per cent of live births are attended by skilled health personnel. All Iranian citizens are entitled to basic health care coverage provided by the government, and 90 per cent have health insurance. In 2014, the government introduced a Health Transformation Plan aimed at improving efficiency, equity and effectiveness, particularly in poorer and rural areas.”[129]

   [129] Annexure to Applicant’s SFIC at A1, p 15 of the DFAT report.

2. Further, with specific reference to the availability of mental healthcare services to the public in Iran, the DFAT report says this:

   “[2.24] Need for mental health services in Iran is significant. An April 2018 study by the Ministry of Health and Medical Education found that nearly one-quarter of adults suffer from some form of mental illness, with women more likely to be affected than men.
   …
   

   [130] Annexure to Applicant’s SFIC at A1, p 15 of the DFAT report.

   [2.25] Iran has had a national policy on mental health since 1986. The policy aims to increase access to mental health services, including by building psychiatric wards in general hospitals and developing a mental health component in primary health care, and improve the availability of essential medicines. As part of its implementation of the Health System Development Plan, the government has increased the availability of counselling services and therapeutic interventions for individuals suffering from mental illness.”[130]

3. While it can be accepted that the overall standard of publicly available general healthcare services, plus mental healthcare services, in Iran may not necessarily be to the same standard as that of Australia, the above-quoted portions of the DFAT report confirm that the Iranian government (1) is committed to maintaining and improving the standard of publicly available healthcare and (2) performs moderately well in terms of its human development indicators as measured by the United Nations Development Programme, ranking 65^th out of 189 countries.

4. The Applicant’s age is not an impediment to any return to Iran. The claimed state of his physical and mental health are issues that will be able to be addressed, to at least some type of satisfactory standard, in Iran. That standard may not be the same as that available to him in Australia, but it is nevertheless of a standard that should be able to afford him publicly available treatment for his claimed symptoms.

5. Sub-paragraph 9.2(1)(b): the Applicant was born in Iran and spent approximately half his life in that country before coming here. Of course, residing in Australia for the last 10 years would have undoubtedly westernised his outlook and his approach to life. However, that is not to suggest he has resided in Australia for so long such as to cause him to have a total lack of familiarity with the linguistic and cultural norms of Iran. To the extent he may have forgotten those language and cultural norms, he will quickly be able to recall them and, therefore, those language and cultural elements would not now represent “substantial” impediments to his re-settlement in Iran in the event of his removal.

6. Sub-paragraph 9.2(1)(c): I have earlier quoted the relevant portions from the DFAT report relating to publicly available healthcare in Iran for the Applicant’s claimed physical and mental health symptoms. In terms of unemployment benefits that would be available to the Applicant in Iran were he unable to source employment, reports suggest that:

   “A small percentage of labor force in Iran manages to collect unemployment benefits in the event of losing their jobs. 

   According to a study on unemployment insurance in the year ending March 2020, only 260,000 out of three million jobless people (1.74 million of whom held a job before becoming unemployed) received unemployment benefits. 

   That is to say only 8.6% of the total number of unemployed Iranians (15% of those held a job before becoming unemployed) received unemployment benefits, the Persian-language daily Shargh reported, citing the data released by Social Welfare Department of the Ministry of Cooperatives, Labor and Social Welfare. 

   Researchers of the study believe that 8.8 million people or 30% of the total number of Iran’s employed population can potentially receive unemployment benefits…”[131]

   [131] Only 8.6% of Jobless Iranians Receive Unemployment Benefits | Financial Tribune

7. In terms of social support, the Applicant refers to two uncles/aunts in Iran and one grandparent there. He says of them: “they don’t know about my situation, they are hard to contact, hardly ever on social media.”[132] During his evidence in chief, the Applicant spoke of his level of contact and familiarity with his grandmother in Iran:

   “MR STEELE: And do you have relatives in Iran?

   APPLICANT: No, I’ve got no one. 

   MR STEELE: There’s some suggestion that your grandmother still lives in Iran?

   APPLICANT: I think, yes, my grandma.  I don’t know her but.  I don’t – I haven’t spoken to her.  I don’t know.  She has no contact, no social media.  I don’t – I haven’t spoken to her ever.  Last time I remember was in Iran, I think, in the house.  I remember she was there.

   MR STEELE: So you haven’t spoken to your grandmother since you left Iran?

   APPLICANT: No. 

   MR STEELE: Okay.  Have you spoken to any other family members in Iran since you left?

   APPLICANT: No, I’ve got no – like I’ve got no one to talk to.  There’s no one.  I don’t think there’s even social media, like I don’t – there’s no one to talk to.”[133]

   [132] R1, p 69.

   [133] Transcript, p 12, lines 4-16.

8. While he does not have a guaranteed level of social support upon a return to Iran, he is not entirely devoid of social support in that country.

9. I am of the view (and I find) that sub-paragraphs 9.2.1(a), (b) and (c) attract a moderate, but not determinative, level of weight in favour of revoking the delegate’s decision to refuse to revoke the mandatory cancellation of the Applicant’s visa.

   Other Consideration (c): Impact on victims

10. Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

11. As mentioned earlier in these Reasons, there is at least one victim impact statement from one of the two victims of the Applicant’s very serious offending. Be that as it may, the Respondent’s representative urged the Tribunal in the course of closing submissions to not allocate any weight to this Other Consideration (c):

    “SENIOR MEMBER:  Before we do that, other consideration C?  There’s two victim statements.  Well, one and plus the mother’s statement. 

    MR KYRANIS:  I’m not asking the tribunal to give impact on victims any weight.  The tribunal clearly - the tribunal’s seen the victim impact statements.  But in my submission, paragraph 9.3, it talks about the impact of a 501CA decision on members of the community, including victims and the family.  It’s the - in my submission, there’s other considerations that focus on the impact of the visa cancellation decision on the victim.  The tribunal doesn’t have that.  The tribunal has quite compelling, in my submission, victim impact statements talking about the harm that they suffered as a result of the applicant’s offending.  But they don’t go to - the impact statements don’t talk about the consequences of this decision. 

    SENIOR MEMBER:  This decision on them. 

    MR KYRANIS:  Yes.  I’m not asking the tribunal to – sorry. 

    SENIOR MEMBER:  So what - sorry.  Go ahead.

    MR KYRANIS:  I’m not asking the tribunal to infer that they’d be negatively affected.  Or that – it’s that they would - - -

    SENIOR MEMBER:  I see.  You’re saying it would be a dangerous inference to draw if the tribunal were to find that because there’s a victim impact statement in the material, that this particular victim that wrote that would be adversely affected if she bumped into the applicant at the supermarket, for example, on Saturday morning.  Is that what you’re saying?

    MR KYRANIS:  Yes.  Yes, I am.  I’m not - I just - I can’t - I’m not making a submission to the tribunal based on the evidence that’s before - I can’t make a submission that this consideration is relevant based on the evidence that’s before the tribunal. 

    SENIOR MEMBER:  All right.  Okay, thank you.”[134]

    [134] Transcript, p 83, lines 24, 45 and p 84, lines 1-12.

12. I respectfully agree with the above-mentioned course proposed by the Respondent’s representative. Otherwise, the parties are ad idem that this Other Consideration (c) should be given neutral weight.[135] I respectfully endorse this mutually-held position.

    [135] A5, p 6, para [35]; R2, p 17, para [64].

    Other Consideration (d): Links to the Australian Community

13. Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.

14. There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of his ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will now consider each in turn.

    (1)  Strength, nature, and duration of ties

15. With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, ‘immediate family members’ where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.

    Impact of non-revocation on the Applicant’s immediate family

16. In terms of immediate family in Australia, the Applicant has (1) his mother and (2) his father residing here. In his statement before the Tribunal, the Applicant’s father refers to the level of support the Applicant provided to both him and other members of the family in these terms:

    “[6] After the medical procedure, I relied on my son [the Applicant] to assist me with daily tasks. For example, [the Applicant] would take me to my medical appointments, remind me to take my medications, he would help me with bathing, looking after the garden and my pigeons, grocery shopping, cleaning the house, taking [Child H], [Child A] and [Child Ha] to school when needed, supervising [Child A] and [Child Ha], and cooking meals for the family. [The Applicant] used to contribute his income to the family when he was working.”[136]

    [136] Annexure to Applicant’s SFIC at A1: p 2 of 5 of the father’s statement.

17. In the statement of the Applicant’s mother, she refers to the role the Applicant has played in the life of the family and the extent to which that role will be missed in the event of his removal:

    “[15] My family is falling apart without [the Applicant]. He was the one keeping is together and without him I feel like my mental health will get the best of me. I have been holding on to hope for so long but it is wearing off now, I am not doing well mentally and my physical health is disintegrating. My three younger children are all not coping without their older brother, the one who would always cook them breakfast in the morning and take them to school, take them to get McDonald’s and ice cream or take them to the beach (that is where they would go often together), is no longer here. My two youngest can’t comprehend why he isn’t here, and I hurt to see them asking me why, my older son [Child H], understands but is hurt the most out of all the children. [Child H] stopped attending school ever since [the Applicant] was sentenced. [Child H] is also mentally struggling with depression.”[137]

    [137] Annexure to Applicant’s SFIC at A1: p 3 of 4 of the father’s statement.

18. Neither the Applicant’s father or mother gave oral evidence at the hearing. Be that as it may, I am satisfied that both will be adversely impacted by any removal of the Applicant to Iran. Therefore, the Applicant’s ties to his immediate family in Australia is a factor that weighs in favour of revocation. To the extent that such weight is attracted to this component of the Direction, I allocate such weight on the basis that the Applicant’s mother and father are either Australian citizens, permanent residents and/or persons who have a right to remain in Australia indefinitely.

    Strength, nature and duration of ‘other ties’ – length of residence

19. I will now examine the two necessary elements referable to the extent of the Applicant’s ‘other ties’ to Australia. The first element involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, he came to Australia in 2011 as a 10 year old. He has not departed Australia since his arrival in 2011 and has spent about half his life here.

20. Next, I will examine the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those directs me to allocate less weight if the Applicant began offending soon after arriving here. As mentioned, the Applicant came here in April 2011. He committed his first offence in Australia in October 2017 and was convicted of that offence in November of that year. This initial offending therefore occurred some six years after he arrived here. Such a six year period of time post-arrival cannot be construed as offending that occurred ‘soon after arriving in Australia’. The first of these two tempering sub-elements should be put to one side and rendered neutral.

21. The second tempering sub-element requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. In his PCF, there is reference to him engaging in remunerative employment between August 2018 and January 2019 as a delivery driver.[138] He lists his positive contributions to Australia as “4 year electritian [sic] apprenticeihp [sic]. U16 representive [sic] Basketball for Ipswich Force and South east Queensland. Part of hoop dreams Basketball arranged and owned by David Yohan my coach.”[139]

    [138] R1, p 71.

    [139] Ibid, p 72.

22. While the Applicant does not have a lengthy history of employment in Australia, it can be safely found that he has had little chance to compile any such history due to his relatively young age. At the hearing, he spoke of a determined intention to immediately return to the workforce – specifically in the construction industry – initially as a labourer and to then become apprenticed in one of the trades. Thus, although the first tempering sub-element is of neutral value, this second tempering sub-element can be applied in the Applicant’s favour for the allocation of weight to this Other Consideration (d) for the purposes of revoking the mandatory cancellation of his visa.

    Strength, nature and duration of ‘other ties’ – family and other social links

23. The material does not mention the Applicant having any other family member residing in Australia such as: in-laws, cousins, grandparents, uncles/aunts.[140] I have also looked carefully through the material and have located a character reference from the abovementioned Mr David Yohan. In his statement, Mr Yohan says the following about the Applicant:

    “In providing this character reference, I am aware of all of [the Applicant’s] Juvenile criminal convictions including his sexual offences and I have read his statement to the AAT and a redacted (names removed) version of the statement of facts in relation to [the Applicant’s] sexual offences (with [the Applicant’s] consent).

    …

    I first came in contact with [the Applicant] in early 2014 when he started attending Yeronga High School. From that time I witnessed and knew [the Applicant] to be a compassionate, honest, reliable and a well-respected young man. Throughout the years I have had the pleasure to see [the Applicant] grow. He is a community-minded individual who regularly puts the needs of others before his own — best evidence through his substantial community involvement as a participant and volunteer

    …

    I’m aware of [the Applicant’s] extremely difficult childhood and his ongoing exposure to family violence in Australia through his teens. In my opinion [the Applicant] was one of the most gifted and dedicated young people I knew. I’m disappointed in [the Applicant] for the offences he committed but I believe he has been punished for his crimes and he deserves to be given a second chance. I continue to believe that [the Applicant] is a good person, and his juvenile offences will not be repeated as an adult, especially, after the loss of his basketball scholarship opportunity and loss of freedom by imprisonment and detention.

    …”[141]

    [140] See, for example, the Applicant’s PCF at R1, p 69.

    [141] A3, Character Reference Statement by Mr David Yohan dated 24 October 2022.

24. I am satisfied that Mr Yohan will be adversely impacted by any removal of the Applicant to Iran. Therefore, the Applicant’s ties to him (by way of a social link in Australia) is a factor that weighs in favour of revocation. To the extent that such weight is attracted to this component of the Direction, I allocate such weight on the basis that Mr Yohan is either an Australian citizen, a permanent resident and/or a person who has a right to remain in Australia indefinitely.

    (2)  Impact on Australian business interests

1. Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.

   Weight allocable to Other Consideration (d): links to the Australia community

2. Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above-referred elements – that the totality of the evidence points to the allocation of a strong, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant and is rendered neutral. Overall, the Applicant’s links to the Australian community carry a strong, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.

   Further Other Consideration (e): Prolonged or Indefinite Detention

3. This Tribunal should bear in mind and take into account any legal consequences arising from its decision relating to the Applicant’s visa.[142] Section 189 of the Act provides that a non-revocation outcome would result in his continued detention until his removal. Therefore, it can be accepted that a non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.

   [142] That is, his Bridging visa (Class WE), which is the subject of these proceedings.

4. If I affirm the decision under review, the likely reality will be that the Applicant will remain in immigration detention until another event ends that detention. In terms of such an “event” paragraph 9.1(3) of the Direction provides three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:

   ·removal to another country; or

   ·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or

   ·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.

5. While it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (e) should, in my view, be limited in the circumstances of this case.

6. This is so for a couple of reasons. First, paragraph 9.1(3) of the Direction relevantly provides that if the Applicant is able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined.[143] In the event a ‘protection finding’ were made, the Applicant would not be liable for removal unless and until any one of the following occur:

   ·the decision grounding the protection finding is quashed or set aside; or

   ·pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or

   ·the Applicant asks the Minister, in writing, to be removed.

   [143] Section 198(5A) of the Act.

7. Here, the Applicant’s inclusion in his father’s failed application for a SHEV now means that the bar in s 48A of the Act applies to him such that he is unable to lodge a further application for a protection visa in the migration zone until such time as the Respondent agrees to lift the bar in s 48B of the Act.

8. Second, as outlined earlier, pursuant to this Tribunal’s remittal (on 5 November 2021) of the Applicant’s application with a direction that the Applicant was a member of the same family unit as his mother (who successfully obtained a SHEV on 13 February 2019) such that he would be eligible for a SHEV pursuant to s 36(2)(b) of the Act. As also mentioned earlier, that application is pending and in the process of a reconsideration. In that regard, I also note the Applicant was recently asked by the Respondent’s department for further comment on his criminal history in Australia.

9. If the Applicant succeeds in obtaining that particular SHEV, then his time in detention will end. If he is unsuccessful then it must be accepted that a legal consequence of this Tribunal affirming the decision under review is that the Applicant will be detained for an unknown period or until one of the three abovementioned alternatives at paragraph 9.1(3) of the Direction occur. If none of those three alternatives occur, the Applicant may well remain in immigration detention without a fixed end point. This Other Consideration (e) carries a strong, but not determinative, level of weight in favour of restoring the Applicant’s visa status to remain here.[144]

   [144] That is, the visa status deriving from his previously-held Bridging visa (Class WE) which was mandatorily cancelled.

   Findings: Other Considerations

10. I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    (a)international non-refoulement obligations: carries a moderate, but not determinative, level of weight in favour of revocation;

    (b)extent of impediments if removed: carries a moderate, but not determinative, level of weight in favour of revocation;

    (c)impact on victims: is of neutral weight;

    (d)links to the Australian community: carries a strong, but not determinative, level of weight in favour of revocation; and

    (e) prolonged or indefinite detention: carries a strong, but not determinative, level of weight in favour of revocation.

    conclusion

    Is there another reason to revoke the cancellation of the Applicant’s visa

11. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

12. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: carries a very heavy level of weight against revocation;

    ·Primary Consideration 2: is not relevant;

    ·Primary Consideration 3: weighs moderately, and not determinatively, in favour of revocation;

    ·Primary Consideration 4: carries a very heavy level of weight against revocation;

    ·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weight I have allocated to each of Primary Considerations 1 and 4 cumulatively outweigh the combined weight I have allocated to Primary Consideration 3 and Other Considerations (a), (b), (d) and the further Other Consideration (e);

13. A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore does not favour revocation of the delegate’s decision made on 26 August 2022 which refused to revoke the mandatory cancelled the Applicant’s visa.

14. Consequently, I find that there is not ‘another reason’ why the Respondent’s decision of 26 August 2022 should be revoked.

    DECISION

    191.Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 191 (one-hundred-and-ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 1 December 2022

Date of hearing:

27 October 2022

Counsel for the Applicant:

Mr M Steele

Solicitor for the Applicant:

Solicitor for the Respondent:

Ms Jamiliah Elshami(Principal/Director)

Mr Jake Kyranis (Senior Associate)
Sparke Helmore Lawyers

Annexure A- Exhibit Register

Exhibit Number	Description of Exhibit	Date of Document	Filing Date
R1	G Documents (G1-G17, paged 1-127)	Various	15 September 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (Paged 1-25) & Other Submissions	Various	3 October 2022
A2	Submissions by the Applicant	Various	4 October 2022
R2	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-19) and Tender Bundle	17 October 2022	17 October 2022
A3	Submissions by the Applicant	Undated	24 October 2022
A4	Applicant’s Tender Bundle	Various	24 October 2022
A5	Applicant’s Additional Outline of Submissions	Various	24 October 2022