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

GRQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4480 (27 July 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3045
Re:GRQV
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:27 July 2023
Date of written reasons: 25 August 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 4 May 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Five-Year Resident Return (Class BB) (Subclass 155) visa is revoked
..................................[SGD]......................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – low risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – expectations of the Australian community – protection finding – non-refoulement obligations – impediments to removal – decision under review set aside and substituted
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES

Ali v Minister for Home Affairs [2020] FCAFC 109

DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Gaspar v Minister for Immigration and Border Protection [2016] FCA 116
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration v HSRN [2023] FCAFC 68
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 54Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
FYBR and Minister for Home Affairs (2019) 272 FCR 454
SECONDARY MATERIALS

European Union Agency for Asylum (EUAA), Country Guidance: Afghanistan, 2023
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
UN High Commissioner for Refugees (UNHCR), Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 2018
United States Department of State (USDOS), Report on International Religious Freedom: Afghanistan, 2022
WRITTEN REASONS FOR DECISION

Senior Member Dr Linda Kirk
25 August 2023

GRQV (‘the Applicant’) is a 31-year-old citizen of Afghanistan.[1] He was granted a Global Special Humanitarian (Class XB) (Subclass 202) visa on 20 October 2014.[2] When he arrived in Australia on 29 October 2014 with his mother and eight of his siblings, he was aged 22 years.[3]
[1] Exhibit R1, G2, 78.
[2]Exhibit R2, R3, 42-48; Exhibit R1, G11, 189.
[3]Exhibit R1, G2, 96; Exhibit A1, 4, [11].
On 3 November 2020, the Applicant was granted a Five-Year Resident Return (Class BB) (Subclass 155) visa (‘the visa’).[4]
[4]Exhibit R1, G2, 88.
On 16 September 2022, the Applicant was convicted in Burwood Local Court of Armed w/i commit indicatable offence; Destroy or damage property > $2000 & < = $ 5000; Intimidate police officer in execution of duty w/o abh; Stalk/intimidate intend fear physical etc harm (personal); Contravene prohibition/restriction in AVO (personal) (8 counts); Common Assault; Reckless Wounding; and Intentionally choke etc person with recklessness (‘the September 2022 convictions’)[5] and sentenced to an aggregate term of 15 months’ imprisonment with a nine month non-parole period. The Applicant’s offending occurred between 30 December 2021 and 6 March 2022.
[5]Exhibit R1, G2, 26-32.
On 17 October 2022, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied that the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’ within the meaning of section 501(6)(c) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution: section 501(3A)(b).[6] At the time, the Applicant was serving a sentence of full-time imprisonment at Parklea Correctional Centre in New South Wales for an offence against a law in Australia.
[6]Ibid, G2, 88-93.
The Applicant was invited to make representations to the Respondent about revoking the decision to cancel his visa within 28 days of receipt of the Mandatory Visa Cancellation Decision.5F[7]
[7]Ibid, G2, 91.
On 8 November 2022, the Applicant appointed his sister, ZA, as his authorised recipient.[8]
[8]Ibid, G2, 72-77.
On 8 and 11 November 2022, within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[9]
[9]Ibid, G2, 78-87.
On 5 December 2022, the Applicant was released from criminal custody and detained at Villawood Immigration Detention Centre (VIDC) under section 189 of the Act.
The Applicant was released from detention on 26 December 2022 on the basis that the Mandatory Visa Cancellation Decision was invalid because it was based on aggregate sentences of imprisonment following the decision of the Full Court of the Federal Court in Pearson v Minister for Home Affairs (‘Pearson’).[10]
[10][2022] FCAFC 203 (‘Pearson’).
On 17 February 2022, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) was given Royal Assent and came into effect. This amendment had the effect of revalidating visa cancellations that were invalid following the decision in Pearson. The Mandatory Visa Cancellation Decision was retrospectively validated, and on 11 March 2023, the Applicant was detained again at VIDC under section 189 of the Act.[11]
[11]Exhibit A1,
On 4 May 2023, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[12]7F The Applicant was notified of the Reviewable Decision by an email sent to his authorised recipient on the same day.[13]
[12]Exhibit R1, G2, 14-24.
[13]Ibid, G2, 8.
On 4 May 2023, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[14]
[14]Ibid, G1, 1-7.
The matter was heard by the Tribunal on 6 July 2023. The Applicant attended the hearing in person and was represented by counsel.
The following persons gave oral evidence and were cross-examined at the hearing:
·the Applicant
·ZA, the Applicant’s eldest sister
·SA, the Applicant’s younger sister
The material before the Tribunal consists of:
- Section 501 G-Documents (G1 – G11, pp. 1 – 189) filed 18 May 2023 – Exhibit R1
- Respondent’s Tender Bundle (R1 – R46, pp. 1 – 468) filed 20 June 2023 – Exhibit R2
- Respondent’s Statement of Facts, Issues and Contentions dated 20 June 2023 (‘RSFIC’)
- Applicant’s Tender Bundle (pp. 1 – 742) filed 5 June 2023 – Exhibit A1
- Applicant’s Supplementary Evidence Bundle (pp. 1 – 10) filed 3 July 2023 – Exhibit A2
- Applicant’s Statement of Facts, Issues and Contentions dated 5 June 2023 (‘ASFIC’)
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Subsection 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Subsection 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[15]
[15] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 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 8.55(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 measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
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.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[16] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501’.[17]
[16]Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[17](2016) 241 FCR 461 [57].
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia;
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a) of the Act. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[18] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
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 ...[19]
[18] [2018] FCAFC 151.
[19] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Life in Afghanistan and Pakistan

The Applicant was born in Jaghori, a district in Ghazni province, Afghanistan in 1992.[20] He is the fourth of eleven children born to his parents, SYSA and BKA. He is of Sadat/Sayyed ethnicity and a Shi’a Muslim.[21]
[20]Exhibit A1, 1, [2]-[3].
[21]Ibid, 1, [4].
The Applicant did not attend school in Afghanistan as it was not safe for him to do so because of the Taliban who ‘made things really hard’ for his family because they are Shi’a.[22] He worked as a street vendor selling chewing gum and other small items to support his family.[23] In his oral evidence at the hearing, the Applicant told the Tribunal that his life in Afghanistan was ‘very difficult’ and he had ‘suffered a lot’ and ‘seen a lot of bad things’.[24] When he was around six or seven years old, the Applicant sustained head injuries in a bomb explosion and spent time in hospital.[25]
[22]Ibid, 1, [5], [6].
[23]Ibid, 1, [8].
[24] Transcript of proceedings, 6 July 2023, 6.
[25]Exhibit A1, 1 7, [7]; Exhibit A1, 4, [8].
In around 2008 or 2009 when the Applicant was about 16 years old, his family fled the war in Afghanistan and took refuge in Quetta, Pakistan.[26] They fled because were concerned for their safety and needed to protect themselves.[27]
[26]Exhibit A1, 1, [7].
[27]Ibid, 1, [9].
The Applicant did not attend any formal schooling in Pakistan as he could not speak Urdu.[28] He worked with street vendors helping them to push trolleys, stack products and seek customers to earn money to support his family.[29]
[28]Ibid, 1, [10].
[29]Ibid.
When he was around 17 years old, the Applicant was kidnapped at gunpoint from a bus. He was held in a dark room for a couple of weeks and blindfolded with his hands tied.[30] He was beaten and tortured every night and he was ‘really scared.’[31] He is unsure of the identity of his kidnappers, but he believes he was kidnapped because of his Shi’a religion.[32] He was told his family would have to pay a ransom for him to be released or he would be killed.[33] The Applicant managed to escape by jumping from the building where he was being held to another building.[34] In his oral evidence, the Applicant told the Tribunal about this experience:
The thieves kidnap. They took me. They wanted money, and they did torture me because of my religion. They blindfolded me. They cut my hands, and I suffered a lot. I faced a lot of problems, and - but with the help of (indistinct) I managed to flee.[35]
[30]Exhibit A1, 1, [11]; Exhibit A1, 4, [9].
[31]Ibid, 1, [11].
[32]Ibid, 1, [12].
[33]Ibid.
[34]Ibid, 1, [13].
[35] Transcript of proceedings, 6 July 2023, 6.
Life and work in Australia
When the Applicant and his family learnt that they were going to Australia, they were ‘really happy’ and ‘thought that they would be safe.’[36] The Applicant arrived in Australia with his mother, BKA, and eight of his siblings in October 2014, and were reunited with their husband and father, SYSA, who had resided in Australia since 2006.[37]
[36]Exhibit A1, 1, [14].
[37]Exhibit R1, G2, 96; Exhibit A1, 4, [11].
After arriving in Australia, the Applicant studied English for about a year.[38] Between 2014 and 2016, he worked full-time as a bricklayer to help support his family financially.[39]
[38]Exhibit A1, 1 [16].
[39]Exhibit A1, 1, [17]-[18]; Exhibit A1, 5, [17].
The Applicant moved to a public housing flat in Lidcombe in early 2021 where he lived by himself until he was taken into custody in March 2022.[40]
[40] Transcript of proceedings, 6 July 2023, 11.
Mental health conditions
The Applicant has been diagnosed with paranoid schizophrenia and post-traumatic stress disorder (PTSD).[41] He has a family history of schizophrenia, with two of his brothers also having been diagnosed with the condition.[42] The Applicant receives a depot injection at the clinic every 15 days, and he is also prescribed sleeping tablets and anti-psychotic medication.[43]
[41]Exhibit A1, 28.
[42]Ibid, 5, [25]; Exhibit A1, 13.
[43]Ibid, 2, [26]-[27].
In her statement dated 5 June 2023, the Applicant’s sister, ZA, reported that the Applicant first began ‘acting very strangely’ in around 2016.[44] He ‘became very scared, thinking he was being followed and that someone was trying to get him.’[45] His condition became worse, and he began to have suicidal thoughts. He attempted to kill himself and was taken to hospital on many occasions after ZA called an ambulance.[46]
[44]Ibid, 5, [18].
[45]Ibid.
[46]Ibid, 5, [19].
In June 2018, the Applicant disclosed to Maria Hamidi, Psychologist, ‘delusions about speaking to God, experiencing miracles and having supernatural powers that tell him the good and bad in people.’ She recommended that the Applicant be referred to a psychiatrist ‘to investigate schizophrenia and/or psychotic and delusional disorders.’[47]
[47]Ibid, 7.
In 2019, the Applicant was admitted to hospital for psychiatric treatment on five occasions.[48]
[48]Exhibit A1, 95.
Between September 2019 and July 2020, the Applicant’s care was managed by the Auburn Community Mental Health team.[49] During that time, he was compliant with his treatment plan which included regular appointments with his doctor and anti-psychotic medication (paliperidone).[50]
[49]Exhibit A1, 18.
[50]Ibid.
The Applicant became non-compliant with his anti-psychotic medication in July 2021.[51]
[51]Ibid, 22.
On 18 October 2021, the Applicant presented to a police station as feeling unsafe and was admitted to Cumberland Hospital where he stayed until 9 November 2021.[52]
[52]Ibid, 21.
On 4 November 2021, the Mental Health Review Tribunal determined that the Applicant was a mentally ill person and ordered that he be discharged from hospital subject to a community treatment order.[53]
[53]Ibid, 33.
The Applicant resumed depot injections on 29 November 2021.[54] He missed his depot injection scheduled on 27 December 2021.[55]
[54] Exhibit A2, 10.
[55]Ibid.
Criminal history in Australia
The Applicant’s National Police Check dated 30 September 2022 records his criminal convictions in Australia.32F[56]
[56]Exhibit R1,G2, 25-34.
In February 2015, the Applicant was the subject of provisional, interim and final apprehended domestic violence orders issued by police for the protection of his sister, SA.[57] These orders were made following an incident on 7 January 2015, where SA reported that the Applicant threw a large, iced water bottle at her head.[58]
[57]Exhibit R2, R4, 49-54; R5, 55-58; R6, 59-61.
[58]Exhibit R2, R4, 52.
On 17 February 2017, the Applicant was convicted in Burwood Local Court of Commit act of indecency with person 16 years or over. This conviction arose from an incident on 24 March 2016 where the Applicant sat across from a woman on public transport and was seen masturbating.[59] He was sentenced to a section 9 bond for 12 months to attend counselling/treatment in accordance with medical advice.[60] The Applicant lodged a severity appeal and on 26 July 2017 the order was varied, and the bond was conditioned that the Applicant continue to seek psychological treatment and be supervised by Community Corrections. In his sentencing remarks dated 26 July 2017, Judge Blackmore stated ‘in my view the penalty imposed was extremely lenient, extremely lenient. He should have been sent to gaol’.[61]
[59]Ibid, R7, 62-66.
[60]Exhibit R1, G2, 33.
[61]Ibid, G2, 55.
On 8 November 2017, whilst he was the subject of the good behaviour bond, the Applicant was convicted in Bankstown Local Court of Commit act of indecency with person 16 years or over and was sentenced to another 12-month good behaviour bond.[62] This conviction arose from an incident on 3 April 2017 where the Applicant again sat across from a woman on public transport and was seen masturbating.[63]
[62]Ibid, G2, 33.
[63]Exhibit R2, R11, 74-78.
On 30 July 2018, the Applicant was convicted in Burwood Local Court of Common assault and was sentenced to a two-year good behaviour bond.[64] This conviction arose from an incident on 11 January 2018 where the Applicant was involved in an altercation with the driver of a motor vehicle. The Applicant struck the face of the driver with his hand causing lacerations to the inside of the victim’s mouth and upper lip.[65]
[64]Exhibit R1, G2, 33.
[65]Exhibit R2, R14, 85-89.
On 30 November 2021, the Applicant was convicted of Drive vehicle, illicit drug present in blood following a drug test which returned a positive result for cannabis and methylamphetamine.[66]
[66] Exhibit R1, G2, 33; Exhibit R2, R15, 90-93.
September 2022 convictions
On 16 September 2022, whilst he was the subject of the Community Corrections Order, the Applicant was convicted in Burwood Local Court of Armed w/I commit indicatable offence; Destroy or damage property > $2000 & < = $ 5000; Intimidate police officer in execution of duty w/o abh; Stalk/intimidate intend fear physical etc harm (personal); Contravene prohibition/restriction in AVO (personal) (8 counts); Common Assault; Reckless Wounding; and Intentionally choke etc person with recklessness and sentenced to an aggregate term of 15 months’ imprisonment.[67]
[67]Exhibit R1, G2, 26-32.
The September 2022 convictions arose from multiple offences the Applicant committed between December 2021 and March 2022.
On 30 December 2021, the Applicant attended Pindi Supermarket in Auburn where he had previously been banned for ‘inappropriate behaviour’ towards staff. After being asked to leave the store, the Applicant said to the victim, ‘I will kill you and kill the owners of the shop’. He then pulled out a trowel and again threatened to kill the victim, holding the weapon to the victim’s legs and throat. When the Applicant saw the victim calling the police, he went inside the store and used the trowel to hit the glass window, causing it to break. After his arrest, the Applicant turned to a police officer and also threatened to kill him. The Applicant was convicted of Stalk/intimidate intend fear physical etc harm (personal), Armed w/I commit indictable offence, Destroy or damage property, and Intimidate police officer in execution of duty for this incident.[68] In sentencing the Applicant, Magistrate Tang stated that the seriousness of the incident could be ascribed to the fact that the Applicant returned to the shop to cause malicious damage and that it also involved the use of a weapon. This resulted in the victim being in ‘significant fear’ for his safety.[69]
[68]Exhibit R2, R16, 94-99.
[69]Exhibit R1, G2, 47.
On 22 February 2022, the Applicant was walking near Auburn Shopping Centre when he spoke with the victim and ‘suddenly raised his left hand, before slapping the victim’s right sided face’. The Applicant was convicted of Common Assault for this incident.[70]
[70]Exhibit R2, R25, 153-156.
On 5 March 2022, the Applicant and five other males approached the victim outside a liquor store in Auburn. The Applicant became angry during a debate about Islam and struck the victim in the face twice with his forehead. The Applicant then took hold of the strap of the victim’s bag, which was around his neck, and strangled the victim until he became unconscious. The Applicant was convicted of Intentionally choke etc person with recklessness for this incident.[71]
[71]Ibid, R29, 168-173.
On 6 March 2022, the Applicant again saw the victim and chased after him with a rock before swinging a glass wine bottle and striking him in the head. The victim was admitted to hospital with multiple facial fractures, a laceration to the top of his head and a brain bleed. The Applicant was convicted of Reckless Wounding for this incident.[72]
[72]Ibid.
Between January 2022 and March 2022, the Applicant attended or was within 500 metres of the Pindi Supermarket on eight separate occasions, in contravention of three apprehended personal violence orders issued against him.[73] On 17 January 2022, the Applicant attended the Pindi Supermarket despite an AVO which was taken out on behalf of the victim of the earlier incident and two other people. On 4 February 2022, the Applicant again attended the Pindi Supermarket on two occasions that morning and again the same afternoon, constituting two breaches of AVO on the same date. Just a few days later, in an unprovoked attack, the Applicant slapped another victim in the face. This attack occurred within a 500m radius of the Pindi Supermarket and was in breach of a condition not to be within 500m, resulting in three breaches of AVOs due to there being three AVOs in place. The Applicant was convicted of eight counts of Contravene prohibition/restriction in AVO (personal).[74]
[73]Ibid, R20, 130-138.
[74]Exhibit R2, R21, 139-142; R23, 145-148; R24, 149-152; R28, 164-167; R29, 168-173.
In sentencing the Applicant, Magistrate Tang stated that his offending is ‘violent in nature’, including homicidal threats and unprovoked attacks on member of the public, aggravated by the fact that the violence was actual and threatened and that one of the victims was a police officer whom the Applicant threatened upon his arrest.[75] His Honour noted that the Applicant had pleaded guilty to the charges and that he was afforded discounts on his sentences, varying between 15% and 25%.[76]
[75]Exhibit R1, G2, 45.
[76]Ibid, G2, 50.
Magistrate Tang observed that the Applicant ‘has had a traumatic childhood, a refugee background, and has involved a number of different diagnoses of mental health’.[77] His Honour noted that the Applicant had various hospital admissions in 2017, 2018 and 2019 onwards and those admissions included instances where he had presented as paranoid. He remarked that the Applicant ‘has had opportunities previously of an s14 condition and community corrections order’, however he had not been willing and is ‘unable to do community service’.[78] He stated that the section 14, the community corrections order and the community treatment order (CTO) had all been ineffective in preventing further offending. It was noted that the Applicant had not been compliant with the section 14 conditions, including attending for treatment and receiving his medication, and as such had breached his section 14 conditions.[79]
[77]Ibid, G2, 48.
[78]Ibid, G2, 50.
[79]Ibid, G2, 41.
Remorse and responsibility for offending
In his statement dated 5 June 2023, the Applicant wrote:
I don’t really remember my offending. I was really unwell and can’t remember what happened.[80]
[80]Exhibit A1, 2, [31].
During his oral evidence, the Applicant was asked about his criminal offending, and he said he does not remember committing any of the offences for which he was convicted.[81]
[81] Transcript of proceedings, 6 July 2023, 8, 9, 16, 26, 27, 28, 29, 30.
Mental health
The Applicant’s schizophrenia is currently in remission and he is being treated with medication which includes depot injections, anti-psychotic medication and anti-depressants.[82] He was compliant with his anti-psychotic medication in prison,[83] and has also been compliant with it in immigration detention.[84]
[82]Exhibit A1, 49.
[83]Exhibit R2, 175.
[84] Exhibit A1, 40.
In his statement, the Applicant explained how taking his medication has improved his condition:[85]
The medication helps me a lot. Since I got sick my condition was the worst you could imagine. Before my medication I had really bad thoughts and tried to kill myself by taking too much medication. I went to hospital 8 times. The medication helps me with the bad thoughts.
…
I know the medication helps me though and I want to keep taking it. If I don’t take it I completely change and I know I need it. Until the doctors tell me I am 100% cured I will take the medication that I need.
[85]Ibid, 2, [28], [30].
Period in the community
In his statement, the Applicant described the period from December 2022 to March 2023 when he was residing in the community after being released from VIDC:[86]
After I left detention, I was living on my own. I was really happy to have my own place. I needed exercise and money for food so once or twice a week I did some working doing bricklaying.
I was really happy to be in the community and see my family. I could go to the park and go for walks. I was respectful to the community and didn’t cause any problems for anyone.
While I was in the community, I continued to take my medication. My sister helped me and reminded me when it was time for my injection.
[86]Exhibit A1, 2, [33]-[35].
The Applicant told the Tribunal that during this period in the community he was visited at home by a Community Corrections officer and that she was ‘happy’ with him.[87] During cross-examination, the Applicant agreed that the officer warned him about compliance with this medication and attendance at appointments.[88] He admitted that he may have missed an appointment at the community mental health clinic in January 2023[89] and one of his depot injections in mid-February 2023.[90]
[87] Transcript of proceedings, 6 July 2023, 10, 20.
[88]Ibid, 23.
[89]Ibid.
[90]Ibid, 24.
The documentary evidence before the Tribunal indicates that the Applicant received his depot injection on 22 February 2023,[91] and he was next due for an injection on 20 March 2023, but by this time he had returned to VIDC.
[91]Exhibit A2, 3, 5.
The Applicant’s evidence is that he worked two or three days and sometimes four days a week as a bricklayer and labourer during his time in the community. [92]
[92] Transcript of proceedings, 6 July 2023, 14.
When his visa was cancelled for the second time in March 2023, the Applicant voluntarily went to the police station and agreed to return to VIDC:[93]
I found out that the law changed and my visa was cancelled again. This was really upsetting. I worried that I would lose my house. I thought I was free and could get back to my life but it was taken away from me.
I wanted to follow the rules so I voluntarily went to the police station said I would go back to detention. I wanted to do the right thing and I was told I did the right thing.
[93]Exhibit A1, 3, [36]-[37]; Transcript of proceedings, 6 July 2023 10.
Risk of re-offending
In his statement, the Applicant stated:
I don’t want to hurt anyone or cause any problems for people. When I was in the community for three months before I went back to detention I didn’t cause any problems or hurt anyone.[94]
[94]Exhibit A1, 3, [32].
The Community Corrections Sentencing Assessment Report dated 29 August 2022 assessed the Applicant as a ‘Medium’ risk of re-offending according to the Level of Service Inventory (Revised) (LSI-R).[95] Community Corrections overrode this assessment and raised the risk of re-offending to ‘High’ based on the result of the Applicant’s Static-99R assessment.[96] Community Corrections found that the Applicant’s risk to the community could be managed through access to a GP and culturally appropriate psychological care or a referral back to the Auburn Community Mental Health Team for them to consider whether a compulsory treatment order may be appropriate.[97] Community Corrections further considered the Applicant’s access to housing as being a protective factor and suggested that a referral to NDIS would be appropriate in managing his risk.[98]
[95] Exhibit R2, R30, 176. LSI-R is an actuarial assessment tool designed to identify the offenders' risk and needs with regard to recidivism. It seeks to classify an offender's risk of re-offending as well as to identify their particular criminogenic needs. Based on a social learning model of crime, the LSI-R has 54 items, which are grouped into 10 subscales: criminal history; education/employment; finances; family/marital; accommodations; leisure/recreation; companions; alcohol/drug; emotional/personal; and attitude/orientation.
[96] Static- 99R is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders.
[97]Exhibit R2, R30, 177.
[98]Exhibit R1, G2, 43.

A Progress Note dated 3 January 2023 made by Dr Priya Chandrika, Psychologist, recorded that the option of being referred back to the Auburn Community Mental Health Team was discussed with the Applicant, and he agreed with that referral being made.[99]
[99] Exhibit A2, 8.
Relationship with family members
The Applicant’s family in Australia are his father, who is an Australian citizen, and his mother, who is a permanent resident. He has six adult siblings, one of whom is an Australian citizen and five of whom are permanent residents, and two minor aged siblings all of whom reside in Australia:[100]
[100] Exhibit R2, R3, 43-46
·SZA, born 1984;
·ZA, born 1985;
·SEHA, born 1992;
·SA, born 1993;
·SIHA, born 2001;
·SEHA, born 2002;
·FA, born 2003;
·SIHAA, born 2003;
·SBHA, born 2005; and
·BA, born 2007.
The Applicant also has three minor nieces and nephews in Australia.[101]
[101] ASFIC, [13].
In his statement, the Applicant described his relationship with his parents and siblings and their concerns about him:[102]
I have a close relationship with my family. I speak to my mum and dad every day. They both have health issues and I worry about them.
I have five brothers and five sisters. I like to talk to them whenever I can. I speak with my brother SBHA and sister BA most nights when I call to speak to my parents. I encourage them to focus on their study and work hard. I tell them what a great opportunity it is to live in Australia and try to give them good advice.
My family are very concerned about me. When I was in prison, they were crying and worrying about me all the time. They are still worried and thinking about me and my future. They want to be reassured that I am safe and well.
My sister Zahra has helped me a lot. I am forever grateful to her. Without her help I don’t know what would have happened to me. She has a health condition too and three young kids. I hope she gets better because she helps me a lot and I want her to be happy and healthy.
It affects me in a big way knowing they are upset and stressed about my situation. I am concerned about being away from them. I worry that they are worrying about me. I miss them and miss being with them.
Not knowing about what will happen to me and how this will impact my family affects me a lot and makes me really stressed and worried.
[102]Exhibit A1, 2, [20]-[25].
In his oral evidence, the Applicant told the Tribunal that when he was in gaol and while he has been in immigration detention, he maintained regular phone contact with his family members but they did not visit him in person.[103] When he was recently in the community, his mother would visit him once or twice a week and bring him food.[104] He also would visit his mother, father and siblings in their home.[105] His sister, ZA, does not drive and so it is difficult for her to visit him. However, when she was in the community she called him every day and reminded him to take his medication and to visit the clinic for his depot injections.[106]
[103] Transcript of proceedings, 6 July 2023, 19.
[104]Ibid, 12.
[105]Ibid, 12-13.
[106] Transcript of proceedings, 6 July 2023, 8.
The Applicant told the Tribunal that when he phones his mother he would ask to speak with his younger siblings, SBHA and BA, and he also would see them when he visited his parents’ house.[107] He said that he and his younger siblings ‘like’ and ‘respect’ each other. When he was in the community, he would go with his mother to watch them play soccer games.[108]
[107]Ibid, 13.
[108] Ibid.
Time in gaol immigration detention
On 25 October 2022, whilst an inmate at Parklea Correctional Centre, the Applicant approached another inmate, grabbed him by the throat, and threatened to kill him.[109] During cross-examination, the Applicant was asked about an incident on 3 May 2023 when he took a metal bar from the gym of the detention centre and smashed a window.[110] He said that he apologised to the officers. He was asked whether he told the officers that he damaged the windows out of ‘frustration’ because he missed being with his girlfriend. He said he does not remember what he told the officers.[111]
[109]Exhibit R1, R32, 181-184.
[110]Ibid, R40, 207.
[111] Transcript of proceedings, 6 July 2023, 31.
In his statement, the Applicant described his current circumstances in immigration detention:[112]
My situation right now is really stressful. Even with the medication I feel depressed and anxious. It is really hard for me in here with the high walls and not being able to go home. I am worried about my future.
…
Since coming back to detention it has been really hard. Villawood is really difficult. It’s a confined space and I don’t want to be here.
[112]Exhibit A1, 2, [29], [38].
The Applicant told the Tribunal that there are many ‘dangerous people’ in the immigration detention centre, that he is a ‘harmless person’, and he tries to ‘avoid problems or create problems.’[113]
[113] Transcript of proceedings, 6 July 2023, 31-32.
Future plans
The Applicant’s evidence is that if he is unsuccessful in his review application he will be ‘heartbroken’ and ‘it will be a big loss for him, but he has ‘no choice but to follow rules’.[114] He described his plans if he is able to return to the community:[115]
I am young and want to get married and have a family. I am looking forward to getting better and living my life. If I don’t get my visa back I will lose everything.
[114]Exhibit A1, 3, [42].
[115]Ibid, [43].
The Applicant told the Tribunal that he wants to work three or four days a week as a bricklayer or labourer. He would like to obtain a formal trade qualification as a bricklayer.[116]
[116] Transcript of proceedings, 6 July 2023, 15.
Fear of harm and impediments on return to Afghanistan
In his statement, the Applicant described his concerns about returning to Afghanistan:[117]
If I return to Afghanistan, I will be killed. The Taliban hate Shia and call us infidels. We came to Australia because we wanted to be safe. If it was safe in Afghanistan, we would not have left. Australia has been so good to us and helps refugees like us whose lives are in danger.
I will also be targeted because I will be seen to be Australian because I have lived here for so long and have family here.
I will also have problems in Afghanistan because of my mental health. There is no treatment for me there. Here, I have people who love and support me. I won’t have anyone there. I will be mistreated because of my mental illness. People with problems like mine get stoned.
[117]Exhibit A1, 3, [39]-[41].
Applicant’s eldest sister, ZA
The Applicant’s eldest sister, ZA, provided a written statement dated 5 June 2023,[118] and gave oral evidence in person at the hearing.
[118]Exhibit A1, 5, [21].
In her statement, ZA states that she has been the Applicant’s primary carer since he became mentally unwell.[119] She helps to ‘remind him to take his medication and take him to his appointments.’[120] While the Applicant was in the community, she ‘made sure he attended his parole appointments, his GP appointments’ and ‘his depot injections.’[121]
[119]Ibid.
[120]Ibid, [22].
[121]Ibid, 6, [29].
ZA helped the Applicant to access public housing[122] and apply for the disability support pension.[123] She states that since the Applicant returned to immigration detention, he is ‘at risk of losing his housing’. She has ‘been communicating with the Department of Housing to make sure they hold his place for him’.[124]
[122]Ibid, 5, [23].
[123]Ibid, [20].
[124]Ibid, [24].
During her oral evidence at the hearing, ZA described the support she and her family will give the Applicant if he is returned to the community:[125]
So what I will be doing and what I have been doing in the past would be, firstly, to - to, you know, to take care of his medical issues. Visit to psychologist, psychiatrist, GP. Make sure that he’s taking his medication. And then, to take care of his pension issues, and also, that he is staying at his place, either myself, my mother, or other sisters, they would visit him.
[125] Transcript of proceedings, 6 July 2023, 41.
In her statement, ZA describes the family’s concerns about the Applicant if he is returned to Afghanistan:[126]
We are all very worried about what will happen to [the Applicant] if he is returned to Afghanistan.
He has a mental problem and needs his family here to look after him. He needs someone to take him to appointments, go to clean his house, bring him meals and things like that. He doesn’t have anyone in Afghanistan to support him like that.
In Australia, if he has bad thoughts he can be looked after by police, ambulance and doctors. He will not be able to get that help in Afghanistan.
We are also worried about what the Taliban will do to [the Applicant]. It is dangerous for Shia people as the Taliban attack and kill us because of our religion.
[The Applicant] has already been kidnapped once by the Taliban because of his religion. He was lucky to get away and I don’t think he would survive if it happened again.
[126]Ibid, [36]-[40].
In her statement and in her oral evidence,[127] ZA told the Tribunal that if the Applicant is returned to Afghanistan, she and the family will return there with him:[128]
Our family knows that [the Applicant] won’t survive on his own. He has said that if [the Applicant] has to leave Australia we all need to leave with him to care for him. We are grateful that Australia has given us a home but we can’t leave our brother to die. This puts all of us at risk.
[127]Ibid, 39.
[128]Exhibit A1, 6, [41].
Applicant’s younger sister, SA
The Applicant’s sister provided a written statement dated 3 July 2023,[129] and gave oral evidence in person at the hearing.
[129]Exhibit A2, 1.
In her statement, SA stated that the Applicant did not hit her on the head with an iced water bottle in January 2015. She lied about him doing so because she was at a ‘crazy age’, ‘new in Australia’ and ‘so young’ and ‘without thinking’ she listened to her friends and ‘said (sic) lie about [her] family’. She told the Tribunal:[130]
Because we had come to Australia, we were new to Australia, and my friends, they told me that if I were to say this, then they would get me out of my house and place me somewhere else, and then you’ll be free. You can go out whenever you want …
[130]Transcript of proceedings, 6 July 2023, 49.
SA told the Tribunal that she did not attend court when the AVO was issued against the Applicant. She stated:[131]
I didn’t go. They came and asked me. They said, ‘You can come and give evidence so that your brother will go to gaol.’ And I said, ‘I have lied and I’m embarrassed.’ No, I didn’t go.
[131]Ibid, 50.
She told the Tribunal that neither the Applicant nor anyone else in her family pressured her to make this statement.[132]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[132]Ibid.
1)Does the Applicant pass the ‘character test’?
In the representations and material that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 3 September 2022 recording his criminal convictions and sentences. It relevantly records that on 16 September 2022, the Applicant was convicted in Burwood Local Court of Armed w/I commit indicatable offence; Destroy or damage property > $2000 & < = $ 5000; Intimidate police officer in execution of duty w/o abh; Stalk/intimidate intend fear physical etc harm (personal); Contravene prohibition/restriction in AVO (personal) (8 counts); Common Assault; Reckless Wounding; and Intentionally choke etc person with recklessness and sentenced to an aggregate term of 15 months’ imprisonment.[133] The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 17 October 2022 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
[133]Exhibit R1, G2, 26-32.
The Applicant accepts that he does not pass the character test because of section 501(7)(c).[134] The Tribunal is satisfied that the Applicant does not satisfy the character test, and accordingly it finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
[134] ASFIC, [41].
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[135]
PRIMARY CONSIDERATIONS
[135] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non- citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
a) Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s convictions for Affray, Assault occasioning actual bodily harm, Common assault, Reckless wounding and Intentionally choke etc person with recklessness were ‘violent’ crimes, and in accordance with sub-paragraph 8.1.1(1)(a)(i) of the Direction, must be considered to be very serious. Additionally, the Applicant’s convictions for Commit act of indecency with person 16 years or over were of a ‘sexual’ nature and, in accordance with paragraph 8.1.1(1)(a)(ii) of the Direction must also be viewed as very serious.
The Applicant was the subject of a 12-month Apprehended Domestic Violence order between 26 February 2015 and 26 February 2016 for the protection of his younger sister, SA. The Tribunal accepts SA’s written and oral evidence, corroborated by ZA’s oral evidence[136] that her statement to the police that the Applicant assaulted her with an iced water bottle was false, and accordingly it finds that the Applicant did not engage in family violence offending for the purposes of sub-paragraph 8.1.1(1)(a)(iii) of the Direction.
[136] Transcript of proceedings, 6 July 2023, 44.
The sentencing remarks and police fact sheet in relation to the Applicant’s conviction for Intimidate police officer in execution of duty record that on 30 December 2021, the Applicant threatened to kill a police officer during his arrest for several other offences.[137] As recognised by sub-paragraph 8.1.1(1)(b)(ii) of the Direction, the Applicant’s threats to a member of the NSW Police Force in the performance of their duties must be viewed as serious.
[137]Exhibit R2, R16, 99; Exhibit R1, G2, 45.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant are an objective indicator of the seriousness of his criminal offending. The Applicant was sentenced to an aggregate term of 15 months’ imprisonment for the September 2022 convictions. Although the Applicant’s sentence was lower than the maximum sentence available, sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[138]
[138] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587.

Relevantly to paragraph 8.1.1(1)(d) and (e) of the Direction, the evidence before the Tribunal is that the Applicant’s offending was frequent. In the five-year period between February 2017 and September 2022, he was convicted of 20 separate offences. There also was a trend of increasing seriousness, with the Applicant’s conduct ranging from drug offending and acts of indecency in 2017 to serious incidents of violence in 2022 involving choking, assaults and the use of weapons. The cumulative effect of the Applicant’s offending adds to its serious nature as it has burdened the resources of law enforcement, the court system and corrective services.[139]
[139] DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993 at [67].
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
a) Nature of harm to individuals or the Australian community
The Applicant accepts that his criminal history includes offending that, if repeated, could cause harm to the Australian community.[140]
[140] ASFIC, [51].
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend in a violent manner in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that there is an obvious risk of serious harm to the community which could include physical and psychological harm to individuals and damage to property. If the Applicant were to engage in further acts of indecency, this may result in serious psychological and emotional harm to members of the Australian community, particularly women. The potential extent of the harm that may be caused to members of the community is heightened by the fact that the Applicant’s offending occurred in a public place, and his victims were unknown to him. For these reasons, the Tribunal finds that the nature of the harm to individuals or the Australian community should the Applicant engage in similar criminal offences is serious, and that any risk that it may be repeated is unacceptable.
b)Likelihood of the Applicant engaging in further criminal or other serious conduct
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the available information and evidence before it and finds for the reasons that follow that the risk of the Applicant re-offending is moderate to low.
The Applicant contends that the risk to the community is ‘reduced’ as a consequence of his ongoing compliance with his treatment regime and the support of his sister, ZA, who has assisted him with his compliance while he is in the community.[141]
[141] ASFIC, [53].
The evidence before the Tribunal is that the Applicant’s offending is largely attributable to his mental health condition and non-compliance with his anti-psychotic medication. The Applicant’s most recent offending which resulted in the September 2022 convictions, occurred during the period December 2021 and March 2022. The documentary evidence shows that the Applicant became non-compliant with this anti-psychotic medication in July 2021.[142] On 2 June 2021 the Applicant was detected driving under the influence of drugs.[143] He was hospitalised between 18 October 2021 and 9 November 2021.[144] He received his depot injection on 29 November 2021,[145] but he then missed the next depot injection he was due to receive on 27 December 2021.[146] On 30 December 2021, the Applicant committed the offences of Stalk/intimidate intend fear physical etc harm (personal), Armed w/I commit indictable offence, Destroy or damage property, and Intimidate police officer in execution of duty. On 17 January 2022, the Applicant attended the Pindi Supermarket contrary to an AVO which was taken out on behalf of the victim of the earlier incident and two other people. When his next depot injection was due around 27 January 2022, the Applicant was in gaol having been refused bail between 22 January and 27 January 2022.[147] On 4 February 2022, the Applicant again attended the Pindi Supermarket on two occasions that morning and again the same afternoon, constituting two breaches of AVO on the same date. Just a few days later, the Applicant slapped another victim in the face. The Applicant resumed his depot medication on 22 February 2022.[148] The Applicant was returned to gaol on 23 February 2022 after he committed the offence of Common assault the previous day. He was released on 24 February 2022.[149] Less than a week later, on 1 March 2022, the Applicant was returned to gaol and released the next day on 2 March 2022. He was arrested on 6 March 2022 following him committing the offence of Intentionally choke etc person with recklessness on 5 March 2022. Since this date, the Applicant has been detained in gaol or immigration detention.
[142] Exhibit A1, 22.
[143] Exhibit R2, 90.
[144] Exhibit A1, 21.
[145] Exhibit A2, 10.
[146]Ibid.
[147] Exhibit R2, 447-448.
[148]Exhibit A2, 9
[149]Exhibit R2, 451.
Since his arrest on 6 March 2022, the Applicant has been compliant with his anti-psychotic medication. Community Corrections records confirm that he was compliant with his medication while he was in gaol.[150] IHMS records confirm that he has received his monthly depot injections since he has been in immigration detention.[151] The Applicant regularly received his depot injections when he was living in the community from December 2022 to March 2023, during which time he did not offend, despite missing one of his depot injections in mid-February 2023. The documentary evidence before the Tribunal indicates that the Applicant received his depot injection on 22 February 2023[152] and he was next due for an injection on 20 March 2023, but by this time he had returned to immigration detention. The Applicant has been compliant with his medication since he returned to VIDC on 10 March 2023.
[150] Exhibit R2, 175.
[151] Exhibit A1, 40.
[152]Exhibit A2, 3, 5.
The Applicant’s schizophrenia is currently well-treated and stable. He recognises that he has a mental illness and that his medication has improved his condition and is necessary for his psychological well-being. He is fully aware of the importance of him remaining compliant with his treatment regime. The reminders provided to him by his sister, ZA, to attend the clinic are essential to the Applicant’s compliance. As he explained to the Tribunal, he is illiterate and is therefore unable to read the appointment cards he is given, and he consequently relies on his sister to tell him when he is due for his depot injection.[153]
[153] Transcript of proceedings, 6 July 2023, 21.
In the Sentencing Assessment report dated 29 August 2022, Corrective Services NSW assessed the Applicant as being a ‘Medium’ risk of reoffending according to the LSI-R tool, however his overall risk of reoffending was assessed as ‘High’ due to his risk of committing further sexual offences being assessed in February 2017 as ‘Moderate – High’ using the Static-99R actuarial risk assessment tool.[154] The Tribunal has given appropriate weight to the Corrective Services’ assessment of the Applicant’s overall risk of reoffending, but notes that the Applicant has not engaged in any further sexual offending since April 2017.
[154] Exhibit R2, R9, 70 and R30, 176,
The Tribunal notes that despite the Applicant’s positive engagement with mental health treatment and medication, he has engaged in anti-social offending and behaviour in gaol and in immigration detention, including as recently as May 2023 when he took a metal bar from the VIDC gym and smashed a window, reportedly out of ‘frustration’.
In assessing the Applicant’s risk of re-offending, the Tribunal has given considerable weight to the protective factors that are present which should reduce the likelihood that the Applicant will commit further offences. These include the Applicant’s supportive family members, particularly his eldest sister, ZA, and his mother, both of whom have provided him with practical assistance and emotional support during his period in the community from December 2022 and March 2023, during which time he did not offend. In addition, the Applicant should be able to resume employment as a bricklayer and return to live in the public housing flat in Lidcombe where he resided prior to his incarceration. The stable accommodation and paid employment that await the Applicant on his return to the community are strong protective factors that should lower his risk of reoffending.
(c)whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay and the type of visa being applied for
Relevantly to paragraph 8.1.2(2)(c) of the Direction, the Tribunal finds that the fact that the Applicant will resume his status as a permanent resident of Australia should the Mandatory Visa Cancellation Decision be set aside increases the duration of the period that members of the community will be at risk should the Applicant re-offend.
On the basis of the evidence before it and taking into account the available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is trending from moderate to low. However, in the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, and the fact he is seeking the reinstatement of a permanent visa, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision
Primary consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. For the reasons outlined in [109] above, this Primary consideration does not arise on the material before the Tribunal.
Primary Consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Having regard to paragraph 8.3(3) of the Direction, the Tribunal notes that the Applicant has very strong ties with members of his immediate family who are Australian citizens or permanent residents and reside in Australia, including his parents, six adult siblings and two minor aged siblings, and his three nieces and nephews. He speaks to his parents and sister, ZA, on a daily basis, and he is in regular phone contact with his other siblings. When he was living in the community, his mother would visit him once or twice a week and bring him food, and he would often visit his parents’ home to see them and his minor aged siblings.
Guided by paragraph 8.3(1) of the Direction, the Tribunal has considered the impact of a decision not to revoke the Mandatory Visa Cancellation Decision on members of the Applicant’s immediate family who are Australian citizens or permanent residents. The evidence before the Tribunal is that the Applicant’s mother has been ‘really upset’ since the Applicant returned to immigration detention. She ‘cries all the time and is worried about him.’ She has thyroid cancer, and ZA is worried about how the Applicant’s ongoing detention will affect her mother’s health.[155]
[155] Exhibit A1, 6, [34].
The evidence of the Applicant’s father[156] and sister, ZA,[157] is that if the Applicant is required to return to Afghanistan, his family members will voluntarily return there with him. If this occurs, it will have a significant impact on the Applicant’s family, all of whom have established lives in Australia. The Applicant’s parents both have health conditions, and two of his brothers also suffer from schizophrenia. Furthermore, as Shi’a Muslims, the Applicant’s family members may also face harm on return from the Taliban, which regained control of the government in Afghanistan on 15 August 2021 after the fall of the government of the Islamic Republic of Afghanistan.[158]
[156] Exhibit A2, 2.
[157] Exhibit A1, 6, [41]; Transcript of proceedings, 6 July 2023, 39.
[158] DFAT Country information ‘Afghanistan’ >
Relevantly to paragraph 8.3(4)(a)(iii) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since October 2014, being a period of almost nine years. He arrived here as an adult aged 22 years, and therefore he was not a resident in Australia during his formative years. In March 2016, being 18 months after he arrived in Australia, the Applicant committed an act of indecency for which he was convicted on 17 February 2017. Consistently with the Direction, the Tribunal has given the significant length of time the Applicant has lived in Australia less weight for reason that he has not resided in Australia from a young age, and he began offending soon after arriving in Australia. Relevantly to paragraph 8.3(4)(a)(ii) of the Direction, the Applicant has made a positive, albeit limited, contribution to the Australian economy during his residency in Australia, specifically working full-time as a bricklayer from 2014 to 2016 and from December 2022 to March 2023.
For the stated reasons and having applied the guidance in paragraph 8.3 of the Direction, the Tribunal finds that Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 – Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
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.

Paragraph 8.4(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.4(2).
The relevant minor children are the Applicant’s two younger siblings, SBHA born 2005, aged 17 years and BA, aged 15 years, and his nieces and nephews who are the children of his sister ZA, who are aged four, five and 16 years. Paragraph 8.4(3) of the Direction requires the Tribunal to consider the interests of each child individually to the extent that their interests may differ.
Having regard to the factors in paragraph 8.4(4)(a), the evidence before the Tribunal is that the Applicant and his younger siblings have a good relationship, and they like and respect each other. He has maintained continued and meaningful contact with them during the 18 months that he has been imprisoned and in immigration detention through regular phone and video calls. In her statement, the Applicant’s sister, ZA, states that the Applicant has a ‘good relationship’ with her three children and ‘they miss him.’ They ask her ‘where he is and ask when they will go see him.’[159]She told the Tribunal that when she visited the Applicant at his flat, she would take her children with her, and they also would see him at her parents’ home when they visited them and the Applicant was there.[160] Whereas the Applicant has a positive relationship with his younger siblings and his nieces and nephews, as required by this sub-paragraph of the Direction, the Tribunal has given less weight to their interests for reason that the relationship is non-parental.
[159]Exhibit A1, 4, [2].
[160] Transcript of proceedings, 6 July 2023, 43.
Relevant to the factors in paragraph 8.4(4)(b), the evidence is that the Applicant will reside in his own home if he is released into the community, and he will not therefore be living in the family home with his younger siblings or with his eldest sister and her children. SBHA will reach adulthood next year, BA in three years, and ZA’s eldest child is aged 16 years, therefore the period during which the Applicant can contribute to their development is relatively limited. ZA’s younger children are aged only four and five years respectively, and there is a considerable period of time until they reach adulthood during which there is the potential for the Applicant to contribute to their upbringing.
In relation to the factors in paragraph 8.4(4)(c) and 8.3(4)(d), although the Applicant’s offending has resulted in his physical absence from the lives of his siblings, nieces and nephews since he has been in gaol and immigration detention, there is no evidence before the Tribunal to demonstrate that the Applicant’s offending has directly affected them. Further, having found that the risk of the Applicant engaging in similar criminal or other serious conduct in the future is trending from moderate to low, the Tribunal finds that it is unlikely that there will be any future negative impact on the Applicant’s siblings or his nieces and nephews. He currently communicates with his siblings via phone and video calls and his removal from Australia would not impact his ability to remain in contact with them in the way in which they are accustomed to communicating.
In relation to the factors in paragraph 8.3(4)(e) of the Direction, the evidence is that the Applicant’s siblings and his nieces and nephews live with their parents who fulfill the primary parental role in their lives.
Having regard to the evidence before it, the Tribunal finds that if the Mandatory Visa Cancellation decision is not revoked and the Applicant is removed from Australia, this will limit his ability to strengthen his relationship with his minor aged siblings and nieces and nephews, and would adversely impact their development in the years until they reach adulthood.
For the stated reasons and having applied the guidance in paragraph 8.4 of the Direction, the Tribunal finds that Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The effect of paragraph 8.5 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. This consideration does not involve an inquiry into what the Australian community does or does not expect, because this is normatively expressed in the terms of the consideration: paragraph 8.5(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[161] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.[162]
[161]FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J [77].
[162]Minister for Immigration v HSRN [2023] FCAFC 68.
Relevantly to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant’s offending has included serious and unprovoked acts of violence, the use of weapons, property damage, public sexual offences, and the making of serious threats to police in the performance of their duties. Given the seriousness and nature of this offending, the Australian community would expect that the Applicant should no longer have the privilege of holding a visa to remain permanently in Australia.
The Applicant has resided in Australia as a permanent resident for a period of almost nine years. Accordingly, the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, support a finding that there would be higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the factors in paragraph 8.4 of the Direction in relation to the expectations of the Australian community and, giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the ‘Other considerations to be taken into account in making a decision under section 501(1) as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[163]
Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[163](2018) 74 AAR 545 [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[164] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of the Direction) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[165] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[166]
[164][2021] FCA 775 [22].
[165] Ibid, [23].
[166] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a) Legal consequence of the decision
Paragraph 9.1 of the Direction provides:
1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction contains specific provisions relevant to non-citizens in relation to whom a protection finding has been made (paragraph 9.1.1) and to non-citizens in relation to whom no protection finding has been made (paragraph 9.1.2). A protection finding has not been made in relation to the Applicant, but he has raised non-refoulement claims, and therefore paragraph 9.1.2 is relevant to his circumstances.
Paragraph 9.1.2 provides as follows:
9.1.2 Non-citizens not covered by a protection finding
1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501C A. Where such claims are raised, they must be considered.
2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501C A, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195 A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
In his request for revocation of the Mandatory Visa Cancellation Decision, the Applicant made representations that he is ‘a refugee from Afghanistan’ and would be ‘subject to persecution and significant harm’ if returned.[167] Similarly, in support of his review application, the Applicant contends that he engages Australia’s non-refoulement obligations because he has a well-founded fear of persecution in Afghanistan by reason of his religion, being Shi’a; his membership of particular social groups, namely people with mental illness and people perceived to be Australian or westernised; and his imputed political opinion on account of his religion and his perceived westernised identity.[168] He also contends that he will face significant harm including arbitrary deprivation of life as a necessary and foreseeable consequence of being removed to Afghanistan.[169]
[167]Exhibit R1, G2, 81.
[168]ASFIC, [69]-[70].
[169]ASFIC, [71].
The Respondent accepts that the Applicant may engage Australia’s non-refoulement obligations.[170] However, the Respondent contends that consistent with sub-paragraph (2) of paragraph 9.1.2 of the Direction, the Applicant is able to apply for a Protection visa should the Tribunal decide not to revoke the Mandatory Visa Cancellation Decision, and therefore that it is open to the Tribunal to defer its assessment of whether non-refoulement obligations are owed on the basis that the Applicant may make a Protection visa application in the future.[171] The Respondent also contends that if the Tribunal finds Australia’s non-refoulement obligations are engaged, then this consideration is not necessarily determinative of the question that the Tribunal needs to resolve for the purposes of the review, and it ‘may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[’s] compliance with those obligations such that there is no ‘other reason’’.[172] The Respondent also accepts that if non-refoulement obligations are owed to the Applicant, the legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision may be that the Applicant will be subject to an indeterminate period in immigration detention unless he voluntarily returns to Afghanistan.[173]
[170] RSFIC, [87].
[171] RSFIC, [88] citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [29]-[30].
[172] RSFIC, [89] citing Ali v Minister for Home Affairs [2020] FCAFC 109, at [110].
[173] RSFIC [90] citing WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, at [154]-[162].
As the Applicant has raised non-refoulement claims, the Tribunal must ‘read, identify, understand and evaluate’ those claims: paragraph 9.1.2(1).[174] The Tribunal has had regard to paragraph 9.1.2(2) of the Direction which recognises that it is not necessary at the section 501 stage for a decision-maker to consider non-refoulement issues in the same level of detail as they are considered by a decision-maker when assessing a Protection visa application. Accordingly, the Tribunal is satisfied that it need not undertake a full and comprehensive assessment of whether the Applicant engages Australia’s non-refoulement obligations. The Applicant has made claims that will require a full assessment if he makes an application for a Protection visa, which he will be permitted to make if the Mandatory Visa Cancellation Decision is not revoked: section 501E(2)(a). On the basis of the evidence before it, the Tribunal finds that the Applicant has non-refoulement claims that require assessment prior to his removal from Australia.
[174]Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 [9].

Guided by paragraph 9.1(1) of the Direction, the Tribunal has had regard to sections 189 and 198 of the Act,[175] and finds that a legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen and subject to immigration detention pending his removal to Afghanistan. Section 198(2B) of the Act provides that if the decision to cancel a non-citizen’s visa under section 501(3A) is not revoked, the non-citizen must be removed from Australia as soon as reasonably practicable. Section 197(1) provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations with respect to the non-citizen. Section 197C(2) provides that an officer’s obligation to remove a non-citizen from Australia under section 198 arises irrespective of whether there has been an assessment of whether Australia has non-refoulement obligations with respect to the person.[176] Whereas section 197(3) prevents the removal of a non-citizen who is the subject of a ‘protection finding’ within the meaning of sections 197(4)-(7), as noted above, this is not relevant to the Applicant who is not subject to a ‘protection finding’.
[175] Section 198 of the Act contains the relevant provisions relating to removal of unlawful non citizens. Subsection 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non citizen does not request to be removed, they are liable to be removed under section 198, relevantly subsection (5) in this case, which provides that a detainee must be removed as soon as reasonably practicable if they have not applied for a substantive visa under subsection 195(1) or revocation under section 137K.
[176] Section 197C(2) provides that ‘[a]n officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.’
If the Applicant were to make a Protection visa application before he is removed to Afghanistan, the protection claims made in this application would need to be assessed. However, the assessment of these claims will be a consequence of the Applicant’s application for a Protection visa. It will not be a legal consequence of a decision of the Tribunal not to revoke the Mandatory Visa Cancellation Decision. Accordingly, the Tribunal finds that a legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be liable for removal to Afghanistan as soon as reasonably practicable where he may face persecution or other serious harm contrary to Australia’s international non-refoulement obligations. This is a very significant and serious legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision and the Tribunal must give it considerable weight in deciding whether there is ‘another reason’ why the cancellation of the Applicant’s visa should be revoked.
For the reasons stated above, the Tribunal finds that other consideration a) weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
b)Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
1)    Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen's age and health;[177]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[177] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is aged 31 years, and he is generally in good physical health, however he suffers from paranoid schizophrenia and PTSD. The Respondent does not dispute that the availability of mental health services in Afghanistan will be different to that of Australia and that the Applicant’s removal will have an adverse impact on his mental health.[178] The Respondent also accepts that the Applicant’s mental health conditions would present as a significant barrier to his reassimilation, establishing himself in the community, and finding work.[179]
[178] RSFIC, [96].
[179]Ibid.
The Applicant contends that as a person with a mental illness in Afghanistan, he will face significant barriers in establishing and maintaining a basic standard of living in Afghanistan which are greater than the barriers faced by the general population.[180] The Applicant relies on country information published by UNHCR, the US Department of State and the European Union Agency for Asylum to support his claims that individuals with a mental illness face discrimination and limitations on their access to employment, education and health care,[181] lack economic opportunities and face social exclusion due to them being stigmatised,[182] and are particularly vulnerable.[183] DFAT reports that the majority of the population in Afghanistan faces significant barriers to accessing treatment for mental health issues, including stigma and lack of outpatient services.[184]
[180] ASFIC, [102].
[181] UN High Commissioner for Refugees (UNHCR), Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan, 2018.; United States Department of State (USDOS), Report on International Religious Freedom: Afghanistan, 2022.
[182] United States Department of State (USDOS), Report on International Religious Freedom: Afghanistan, 2022.
[183] European Union Agency for Asylum (EUAA), Country Guidance: Afghanistan, 2023.
[184]Exhibit A1, 321, [2.27].
Based on the evidence before it, the Tribunal is satisfied that the Applicant will find it difficult, if not impossible, to access mental health services and treatment, including anti-psychotic medication if he is returned to Afghanistan. Consequently, his mental health will likely significantly deteriorate, putting him at even greater risk of experiencing discrimination, stigmatisation and limitations on accessing employment, education and health care. If the Applicant is unable to find employment due to the deterioration of his mental health condition, he will face severe financial hardship and will likely become homeless and destitute.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Afghanistan until the age of 16 years, he speaks Arabic, and is reasonably familiar with life in his home country. It will take time for him to readjust to life in Afghanistan and to locate mental health services and treatment, if available. If his mental health condition remains stable and he is able to work, he should be able to find employment as a bricklayer or labourer if he does not face discrimination as a Shi’a Muslim in the Taliban governed country. Relevantly to paragraph 9.2(1)(c) of the Direction, the Applicant has only one paternal aunt who remains in Ghazni province in Afghanistan[185] with whom the family has limited contact, and therefore he will most likely not have financial or practical support or assistance from family members upon his return.
[185]Exhibit A1, 4, [12].
Having regard to the evidence before it, the Tribunal finds that the Applicant will face significant impediments if he is required to re-establish himself in Afghanistan as a person with a mental illness. In addition, by reason of his disability and his Shi’a religion, there is a real risk he will face significant discrimination on return. Furthermore, return to Afghanistan will likely be highly detrimental to his mental health condition and this will significantly impact his ability to work and be financially secure. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that other consideration b) weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
c) Impact on victims
The Direction states in paragraph 9.3(1):
(1) Decision-makers must consider the impact of the section 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.
There is no evidence before the Tribunal of the impact on any victims of the Applicant’s offending for a decision to revoke the Mandatory Visa Cancellation Decision. The Tribunal has therefore given this other consideration neutral weight.
d) Impact on Australian business interests
Paragraph 9.4(1) of the Direction provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant does not claim that any Australian business interests would be affected by his removal to Afghanistan. Accordingly, the Tribunal has given this other consideration neutral weight.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is very serious, particularly as it includes offences of sexual indecency and violence. The moderate to low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for almost nine years and he has close and extensive family ties to Australian citizens and Australian permanent residents.
Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interest of the Applicant’s minor aged siblings, nieces and nephews for him to be permitted to remain in Australia.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining permanently in Australia, and this is not outweighed by the duration of his residency in this country.
In regard to the relevant Other Considerations, the legal consequence of a decision not to revoke the cancellation namely the Applicant being removed to Afghanistan as soon as reasonably practicable is in breach of Australia’s international non-refoulement obligations, and the significant extent of impediments he will face on return, weigh very heavily in favour of revocation.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 4 May 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Five-Year Resident Return (Class BB) (Subclass 155) visa is revoked.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

..................................[SGD]......................................
Associate
Dated: 25 August 2023

Date(s) of hearing:

6 July 2023

Solicitors for the Applicant:

G. Rohan, Legal Aid NSW

Solicitors for the Respondent:

A. Wong, Mills Oakley Lawyers

[2023] AATA 4480

27 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	6 July 2023
Solicitors for the Applicant:	G. Rohan, Legal Aid NSW
Solicitors for the Respondent:	A. Wong, Mills Oakley Lawyers