HGBY and Minister for Immigration and Border Protection (Migration)

HGBY and Minister for Immigration and Border Protection (Migration) [2019] AATA 2352 (2 August 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5733
Re:HGBY
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:2 August 2019
Place:Adelaide

The delegate’s decision of 21 September 2017 is set aside.
In substitution for the 21 September 2017 decision, the 4 February 2016 decision to cancel the applicant’s Class XB Subclass 200 (Refugee) visa is revoked.
......................[sgnd].......................
Deputy President P Britten-Jones
CATCHWORDS
MIGRATION — Mandatory visa cancellation — Request for revocation — Failure to pass the character test — Substantial criminal record — Request for revocation refused — Appeal to Administrative Appeals Tribunal — Whether there are other reasons to revoke the visa cancellation — Protection of the Australian community — Dishonesty offences — Breaches of bail, intervention order and good behaviour bond — Driving offences — Domestic violence — Best interests of the children — Expectations of the Australian community — International non-refoulement obligations — Fears of harm — Strength, nature and duration of ties — Impact of non-revocation on family members who are Australian citizens —Extent of impediments if removed — Migration Act 1958 (Cth), ss 501, 501CA — Revocation of mandatory visa cancellation
LEGISLATION
Migration Act 1958 (Cth)
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ali v Minister for Immigration and Border Protection [2018] FCA 650
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 538
GBV18 v Minister for Home Affairs [2019] FCA 1132
GCLV v Minister for Home Affairs [2019] FCA 845
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President P Britten-Jones
INTRODUCTION

HGBY (the applicant) was born in a small village in the mountains of Afghanistan in 1991. He lived there with his family until they were forced to flee across the border to Pakistan after the Taliban killed his uncle and targeted his father. The applicant was about 8 years old when he left Afghanistan.
In Pakistan, the applicant’s father separated from the family in search of a better life for them. He travelled to Australia by boat and arrived in 2001. The applicant’s father was detained in an immigration detention centre for about 1 year before being granted a temporary protection visa. In 2005, he was granted a permanent protection visa and he subsequently applied to sponsor his family to come to Australia.
For the sponsorship application to be successful, the family were required to provide certain Afghani identification documents to the Australian government. As the applicant’s father did not have these in his possession, the burden of obtaining these documents fell on to the applicant who, aged 14 years old, was required to return to Afghanistan from Pakistan alone.
The applicant sought refuge with a family friend. He was there for 2-3 days and in that time he did not leave the safety of the house for fear of being recognised by the Taliban. The applicant paid the family friend to obtain the identification documents. On this visit, the applicant befriended a girl who was working as a maid. She would later become his wife (Mrs HGBY). They began talking with each other and the applicant discovered that Mrs HGBY had lost her family and was living with the neighbour. Before returning to Pakistan with the identification documents, the applicant told her that they would meet again.
Within about 3 months, the applicant went back to Afghanistan to see Mrs HGBY. At this time they fell in love and the applicant told her he would sponsor her. Again the applicant returned to Pakistan. Sometime after this visit, Mrs HGBY discovered she was pregnant. Fearing for her safety if her secret was discovered, she wrote to the applicant and arranged to meet him at the border of Afghanistan and Pakistan where she would then join his family. The applicant’s first child was born in September 2007.
The applicant’s father’s sponsor application was successful and in June 2008 the applicant (aged 16 years old), his mother and his siblings arrived in Australia. Mrs HGBY, who was pregnant at the time with the applicant’s second child, remained in Pakistan with the applicant’s firstborn.
The applicant and his family settled down in South Australia. He enrolled in a senior college in July 2008 and completed year 9.
In January 2009, the Mrs HGBY gave birth to the applicant’s second child in the absence of the applicant. Six months later, the applicant returned to Pakistan to marry Mrs HGBY and spend some time with his children. He then returned to Australia in August 2009.
Upon his return, the applicant commenced employment in a meat processing factory but after about 5 months ceased that employment on the basis that it was located too far away from his family. In January 2010, he gained employment with a poultry supplier.
Like his father, the applicant made an application to sponsor his wife and two children to come to Australia. That application was successful and in May 2012 they arrived in Australia. The applicant, his wife and his children resided with the applicant’s parents. In April 2014, the applicant’s third child was born.
From 2010, the applicant committed numerous criminal acts which will be discussed further below.
The decision to cancel the visa
On 4 February 2016, the applicant’s Class XB, Subclass 200 (Refugee) visa (the Visa) was mandatorily cancelled (the cancellation decision) under s 501(3A) of the Migration Act 1958 (the Act) because the applicant had a substantial criminal record and therefore did not pass the character test under s 501(6)(a) of the Act and because he was serving a sentence of full time imprisonment.
On 16 February and 2 March 2016, the applicant sought revocation of the cancellation decision. In his representations to the Minister, he claimed that he had concerns or fears about what would happen to him on return to his country of citizenship. In submissions prepared by his solicitor, the applicant stated that:
His father was truck driver in Afghanistan and worked with wood and tree loping and the transporting of wooden goods to market to be sold. When the Taliban had knowledge of [the applicant’s] family business, they disapproved of such conduct and prohibited them from taking the wood from the mountains and they killed his [uncle]. As a result of the murder and threats from the Taliban, [the applicant’s] family fled from Afghanistan.
[The applicant] has no relatives left in Afghanistan, and his life will be in danger there because of persecution by the Taliban. The Taliban and also the local people in Afghanistan will know that he came from Australia (a foreigner) and they will harm or kill him if he was to be returned there.
Furthermore, when [the applicant] was aged about 15 or 16 years, he was caught by the Taliban, and he was kicked in the head and burnt in the arm. [The applicant] then fled to Pakistan after this incident.[1]
[1] Exhibit 1, p 79.
On 21 September 2017, a delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) decided not to revoke the cancellation decision under s 501CA(4) of the Act (the delegate’s decision). The delegate on that occasion was satisfied that the protection of the Australian community and the expectations of the Australian community were best served by the applicant being forced to leave Australia. The delegate found that it was in the best interests of the applicant’s children if the mandatory cancellation was revoked.
The delegate also found that it was not necessary to assess any non-refoulement claims on the basis that the applicant had applied for a protection visa and that if the visa cancellation was not revoked the applicant would not be removed from Australia if he was found to be owed non-refoulement obligations.
The Tribunal and Federal Court decisions
The applicant sought merits review in this Tribunal (differently constituted) of the delegate’s decision. On 3 January 2018, the Tribunal affirmed the delegate’s decision (the first Tribunal decision). The applicant subsequently sought judicial review of the first Tribunal decision.
The application for judicial review was dismissed at first instance by the primary judge.[2] The applicant appealed the primary judge’s decision to the Full Federal Court. Before the Full Federal Court, the parties agreed that the first Tribunal decision was subject to error. The error was expressed in the following terms:
The first respondent [Minister for Home Affairs] concedes that the second respondent [the Administrative Appeals Tribunal] fell into jurisdictional error in misunderstanding the legal effect of s 197C of the Migration Act 1958 (Cth), and proceeded to make its decision on the incorrect premise that the appellant would not be liable to be removed from Australia, but would rather face the prospect of indefinite detention should he be refused a protection visa.
[2] AFY18 v Minister for Home Affairs [2018] FCA 1566.
The Full Federal Court ordered that the applicant’s original application made on 25 September 2017 be reconsidered and re-determined by a differently constituted Tribunal. This is the task that now lies before me.
THE LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, 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)paragraph (6)(e) (sexually based offences involving a child); 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.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that “a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).[3]
[3] Migration Act 1958 (Cth), s 501(6)(a) (further references to sections of an Act are references to the Migration Act 1958 unless otherwise stated).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[4]
[4] S 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[5]
[5] S 501CA(4).
The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one. However, for the purposes of s 501CA(4)(b)(ii):
once the decision-maker is satisfied that there is another reason why the visa cancellation should be revoked, he or she must act on that satisfaction; the decision-maker does not have a residual discretion to refuse to revoke the cancellation.[6]
[6] GBV18 v Minister for Home Affairs [2019] FCA 1132, [56]; Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 538, [38].
ISSUES
The applicant does not dispute the fact that he does not pass the character test. In any case, it is clear that the applicant does not. He has been sentenced to terms of imprisonment of 4 years and 6 months (suspended) and 3 years and therefore has a “substantial criminal record” as defined in s 501(7) of the Act.
The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the cancellation decision should be revoked. Direction 79 requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision.
THE OFFENDING
The respondent provided the following history of the applicant’s offending which is not disputed by the applicant.
The applicant was disqualified from driving following an accumulation of demerit points. He received notice of his disqualification and was found driving a vehicle while disqualified on 7 May 2010. The applicant knew his licence had been disqualified. The vehicle he was driving was also unregistered. The applicant’s licence was disqualified for 4 months for this offending.
On 30 March 2011, the applicant took possession of a car and gave the vendors a cheque for $1,900.00. He told the vendor of the car that he had cancelled that cheque, but gave them a second cheque the following day. He admitted that when he gave the second cheque to the vendor he knew he had no money in his account. When the vendor presented the second cheque to the bank, it was rejected. The vendors called the applicant and he yelled at them and told them not to contact him anymore. He also made various promises to pay for the car. The applicant reported selling the car for $1,300.00 after 2 days. The applicant was convicted of passing a valueless cheque for this conduct and was required to pay compensation.
Between 6 April 2011 and 14 October 2011, the applicant committed 6 offences of ‘obtaining a financial advantage’. This was described in the remarks of the sentencing judge as the applicant helping himself to $8,698.58 in benefits to which he had no entitlement. The applicant offered to help people to use the self-help web-based Centrelink system. He then took advantage of the fact that these people did not know how to log off and redirected the benefits due to those people to him. It was also alleged that the applicant contacted Centrelink by phone and impersonated other recipients in order to change their payment details to his bank account. The applicant was sentenced to 5 months’ imprisonment and was required to pay $8,698.58.
On 17 July 2012, the applicant committed an aggravated assault on his wife. He slapped his wife causing redness to the cheek. The sentencing judge stated that when the police arrived, the applicant’s wife was seen ‘cowering on the ground in a small sitting room, with blood trickling from her nose and a distinctive red cheek’. Notwithstanding the fact that the sentencing Magistrate did not consider the nose bleeding as part of the guilty plea, it was not accepted that the injury to his wife occurred in the context of a playful tapping on the cheek. On the contrary, she found that the slapping on the cheek was intentional and unlawful and that the applicant knew it was unlawful. The applicant was convicted of 2 months’ imprisonment for this offence.
On 18 July 2012, the applicant was granted bail subject to conditions. An intervention order was also implemented that required the applicant not to communicate with his wife or be within 200 metres of the family property. There was a breach of the intervention order on 28 July 2012 when he returned to the family property. In the sentencing remarks, the Magistrate noted that the applicant’s wife knew he was coming and that she was not scared. The applicant stood at the door and apologised to his wife for his conduct.
On 13 August 2012, the applicant committed a similar crime to that of 30 March 2011. The applicant gave a cheque for $7,000.00 to the vendor of another vehicle. The cheque was rejected. The vendor called the applicant and the applicant told him that he would not pay for the car because it had been damaged before it was sold. The applicant told the vendor to pick up the vehicle at a police station and then ended the phone call. The applicant later directed the vendor to an address in Murray Bridge. The vendor went to that address and was told by the occupants that they did not know the applicant but that people often came to their address asking for him. The applicant told the vendor that if he went to the police he and his children would not be safe. The applicant was convicted of a count of theft and a count of deception and was ordered to pay compensation and serve a sentence of 9 months’ imprisonment.
On 15 August 2012, the applicant took possession of another vehicle and provided a cheque to the vendor which was dishonoured. The vendor reported the matter to the police and on 21 August 2012 the applicant called the vendor and asked for her address. The applicant became abusive toward her and she feared that he would come to her home. The applicant was convicted of a count of theft and a count of deception. He was ordered to pay compensation and sentenced to 12 months’ imprisonment.
Police questioned the applicant about whether he had been complying with his bail conditions particularly the condition to reside at a specific address. The applicant told the police he had spent two nights there. Police subsequently spoke to other residents of that address who advised that they had been living there for 2 years and did not know the applicant. The applicant was convicted of breaching his bail conditions and sentenced to 4 weeks’ imprisonment.
On 31 December 2012 and again on 2 March 2013, the applicant took possession of further vehicles for which he provided cheques that he knew would be dishonoured. The applicant did this whilst he was on bail for similar crimes. The applicant was convicted of 2 counts of deception and sentenced to 16 and 20 months’ imprisonment respectively and ordered to pay compensation.
The applicant sold the vehicle that he took possession of on 2 March 2013 to Auto Traders. Auto Traders purchased the vehicle under the misapprehension that the applicant had lawful entitlement to the vehicle and that it was unencumbered. The applicant was convicted of 1 count of deception in relation to this conduct. The applicant was convicted to 20 months’ imprisonment and required to pay compensation.
On 22 August 2013 and 21 September 2013, the applicant did not pay for petrol. At the time, he was the subject of a good behaviour. On the latter date and then again on 7 October 2013, the applicant was caught driving disqualified and was sentenced to 6 months’ imprisonment for both offences. .
On 20 August 2014, after breaching a 3 year good behaviour bond which had been imposed on 9 September 2013, the applicant was sentenced to 3 years’ imprisonment. He also received a further 6 months for new offences. The applicant was incarcerated on 28 July 2014. The applicant’s end release date was 27 January 2018.
EVIDENCE
This section provides an overview of the evidence provided by the applicant and his witnesses in both written and oral evidence most of which was uncontroversial. I found the applicant, Mrs HGBY and the parents to be credible witnesses. I go into greater detail of certain aspects of the evidence in my considerations with respect to Direction 79.
I also note that Mrs HGBY and the applicant’s parents were assisted by a translator when providing their written evidence. At the hearing they gave evidence through an interpreter.
HGBY
The applicant has had regular contact with his three children in the last two years since he has been in immigration detention. He speaks to them on the phone every day before school and after school. He helps them with their homework and spelling. When the children go to the park, they video call the applicant and he watches them play on the playground. His children talk to him about everything, including how they are doing at school.
His family used to visit him regularly at the detention centre. However, since his father’s health has deteriorated and he is no longer able to drive, the applicant only sees his wife and children in person every 4 to 6 weeks.

The applicant also has frequent contact with his wife. He speaks to her in the morning when he is on the phone with the children. After she has dropped the children off at school one of them will call the other again. The applicant’s wife cannot speak English so the applicant organises all of her appointments for her. He will call the doctor if she needs an appointment and then acts as a translator over the phone. When she has to go somewhere and she does not know the directions, he will be on the phone to her telling her where she needs to go.
The applicant and his wife also speak on the phone during the day when she is at home. He provides her with emotional support. Sometimes she cries to him because she is alone and has to look after three boys. The applicant said that he tries to calm her down and tells her that everything will be alright.
Further, because of his wife’s poor English, the applicant is also in communication with the schools at which his children attend. If the children are unwell or unable to go to school, he will call up and let them know. He has spoken with his children’s teachers and the school’s contact number is his mobile number.
The applicant also gave evidence that Mr Balfour’s recommendations for rehabilitation are a good option for him. He stated that he was more than happy to engage with the support services as they would not cost him any money and that he would go and attend at any time of the day. He said that he “was happy to do any course”.
At the conclusion of his evidence in chief, the applicant made the following submission:
For the last 2 years I have been in immigration detention centre. I am not able to see my family. I did not see my family for the last 5 years and my family miss me I miss them. I want to get out into the community and join my family and to live safe for myself and for my family. What I go through the last 5 years for me and my family was very hardship was very sad… I didn’t just waste good years of my life. I just waste my family life as well. My family just go through a lot of hardship. I done what I have done. I only didn’t get punishment, I take my family through me with the punishment. I miss my kids and the good times of my kids. The kids want father when they are young, when they need I didn’t support them… My son was 3 months old, youngest one, when I went to prison. Now he is 5 years old. I didn’t spend much time with him at home…and give the love which is every good father give love to their kids they miss this. I hurt my family very hard. What I have done I didn’t think at the time about it. Now I understand the law more. I understand about how to live in Australia. How to respect family and other community members. I just want to get out and start full time job and do what courses I have to do and just support my family, stay with my family…spend my life in love, in respect and to live safe. I have to keep myself safe, and my family and the community…I really sorry for what I have done from my heart. I feel bad… I feel guilty… I just want to get out and show myself, how I have changed… What I have learnt what I go through I have tried to teach this to other people.
In cross-examination, allegations made by the applicant’s wife in a statement to the police were put to the applicant. Broadly, the applicant accepted the veracity of the statements made. However, when challenged on specifics his evidence diverged to the extent that he denied specific incidents where he was allegedly violent to either his wife or other members of the family.
The applicant was also cross-examined on his claims that his life would be in danger if he was forced to return to Afghanistan. It was put to him that his claim that the Taliban killed his uncle because he was a government employee was a recent invention to bolster his application for revocation; that the first time that this aspect of the claim emerged was when the applicant was interviewed by Mr Balfour. It was also put to the applicant that he had the assistance of legal representation when preparing these statements and that it was peculiar that the issue of the uncle being a government employee was not raised earlier. The applicant’s response to this line of questioning was that he did not provide the “whole story” in his witness statement and that he tried to keep his answers short. I accept the applicant’s response and his evidence generally in this regard.
Mrs HGBY
Mrs HGBY gave evidence that she has daily contact with the applicant. She stated that she speaks with him “almost the whole day”. She speaks to him in the morning before she takes her children to school. Once she has dropped the children at school either she will call the applicant or the applicant calls her. They will then spend hours on the phone to one another. This helps her not become lonely and sad when she is at home. If she needs to go somewhere and she doesn’t know how to get there, the applicant will give her directions over the phone as she is walking.
Mrs HGBY confirmed that the applicant speaks to his children on a daily basis. She stated that he is advising the children on how to become good people and he also helps them with their homework. He tells the children that he made a mistake and that when he is released he will provide happiness to them. After the children have done their homework, they will ask him whether they can play video games.
She also gave evidence that the applicant treats her well now. She did not deny that the applicant had been violent towards her on one occasion in the past (the occasion for which the applicant was convicted for assault) but that after this time up until the applicant was incarcerated he never hurt her again.
Mrs HGBY said in her letter to the Tribunal dated 6 July 2009:
Even though I now know about all of his offending, and even though I was the victim of one of his offences, I still support him getting his visa back so that he return to living with his family in Australia. I am hopeful for a future with [the applicant]. I need him, and his children definitely need him. I think he has grown up and matured since his time in prison. I have noticed especially that he speaks to me more respectfully. Sometimes, in the past, he would speak to me in ways that I thought was disrespectful or insulting. He doesn’t speak to me like that anymore.
[The applicant] has maintained contact with me and our children while he has been in detention. He speaks to us on our phone with video calls every day. With me, we talk about our future and how the children are going, especially with their schooling…
Mrs HGBY was cross-examined on the statement that she made to the police after the assault. It was put to her that the applicant had been violent towards her on other occasions. She stated that what she said in the statement was correct but that she had been angry with the applicant at the time and that the events detailed in the statement were not very serious.
Mrs HGBY made it very clear in her evidence that what she most desired was to be reunited with the applicant. She wants her children to be with their father. She stated that without the applicant she cannot do anything. She wants the applicant to return home so that he can help her with the children.
HGBY’s Parents
The applicant’s father (the father) gave evidence that Mrs HGBY and the children live with him in their family home. He has observed the contact that Mrs HGBY and the children have with the applicant. He himself speaks to the applicant once a day, sometimes once every second day.
He gave evidence that Mrs HGBY talks to the applicant a lot. The amount of time Mrs HGBY and the children spend on the phone with the applicant every day would be around 6 to 8 hours. He used to help a lot with the children but that he cannot do this anymore because of his poor health. He used to help Mrs HGBY by driving the children to places and appointments. He can no longer do this. Sometimes the youngest child cannot go to school because Mrs HGBY is unable to take him.
The father became very emotional when he gave his evidence. He explained that since he found out about his son’s offending he has talked with him and counselled him a lot. He has begged that his son provide a good life for his children and Mrs HGBY. He also explained that he had given his son an ultimatum, namely if his son reoffends he will disown him. This means that he will no longer recognise the applicant as his son. He believes his son will behave himself if he is allowed to return into the Australian community.
The applicant’s mother corroborated the evidence of the father and Mrs HGBY. She stated that the applicant has daily contact with his children and that he helps them with their studies, plays video games with them and shows them love.
HGBY’s Children
The Tribunal has received a written statement from the applicant’s eldest child on behalf of himself and his two younger brothers. He writes:
Firstly, the past two years has been the worst years of our lives, our father has been very supportive when he was at home for instance he would help us with our homework, took us to playgrounds in the park, restaurants and swimming pool. Our father has always played a positive role ever since we came to Australia. Our parents never made us unhappy about anything, even though they were having a tough time between themselves and both my parents has always been there for us.
Second, if our father is deported we won’t be able to live here in peace because our minds would be always with him, because our home country Afghanistan isn’t safe at all. Therefore we request the migration of Australia to give only once chance to our father to prove that he deserves to live here and we three brothers promise that our father will change himself for the good.[7]
[7] Exhibit 1, p 97.
The two older sons attend a Catholic primary school. The Acting Deputy Principal wrote to the Tribunal by letter dated 28 June 2019 saying that she had known the two boys for 6 years and that whilst she had never met the applicant in person she had spoken to him over the phone several times over the years and that he has expressed his desire to make amends for his past and his wish to be home with his family as soon as possible to support them. She said that the two boys had spoken sincerely about their father over the years and expressed their hope that soon he will come home to them. She said that she was in favour of the applicant being in their lives as she believed that it would improve their level of well-being and help them to be more successful in their overall development.
The youngest son attends the local government primary school. His teacher wrote to the Tribunal by letter dated 2 July 2019 stating that he has a high level of absenteeism since the beginning of the year and that she has spoken to the applicant who stated he would like to be able to assist with the upbringing of his younger son and ensure he attends school regularly.
Mr Richard Balfour
The applicant called Mr Richard Balfour, Psychologist, to give evidence on the likelihood of the applicant engaging in further criminal or other serious conduct. Mr Balfour has been a registered psychologist for 31 years. He specialises in forensic and clinical psychology and has extensive experience giving evidence in South Australian courts and tribunals.
Mr Balfour conducted two interviews with the applicant. On 18 June 2019, he interviewed the applicant in person at the detention centre for approximately 2 hours. On 26 June 2019, he conducted a follow-up telephone interview for approximately 1 hour. Mr Balfour has provided to the Tribunal a report dated 1 July 2019 and a supplementary report dated 8 July 2019.
In his report dated 1 July 2019, Mr Balfour made the following observations:
(a)the applicant was cooperative with the assessment procedure and exhibited an appropriate degree of eye contact. He was remorseful regarding his past offending behaviour;[8]
(b)if allowed to remain in Australia, the applicant intends to study to become an aged-care worker. This desire arises from his own experiences in Pakistan where his family struggled to care for his elderly grandparents before they died;[9]
(c)the applicant also expressed a desire to work in the construction industry. Whilst incarcerated he completed a Certificate II in Civil Construction;[10]
(d)with respect to the applicant’s children, he stated that his sons want him to join their sporting clubs. The applicant was also distressed that his children have suffered as a result of his offending behaviour. As his wife does not have a driver’s licence and his father is no longer physically able to drive, he rarely sees his children in person. However, he has video calls with his children on a daily basis.[11] The applicant expressed particular concern about the welfare of his youngest son;[12]
(e)if allowed to return into the Australian community, the applicant plans to secure employment so that he can support his family financially as well as make progress payments to eliminate his debt;[13]
(f)whilst incarcerated, the applicant was not considered a discipline problem by the supervising Correctional Officers;[14] and
(g)the applicant’s family have given him an ultimatum. They have said to him that if he reoffends they will sever all ties with him. His father has explicitly stated that he will disown the applicant and his wife has said that she will leave him. The applicant stated that he wants to avoid this at all costs.[15]
[8] Exhibit 4, p 3.
[9] Ibid, p 13.
[10] Ibid, p 16.
[11] Ibid, p 17.
[12] Ibid, p 18.
[13] Ibid, p 20.
[14] Ibid, p 22.
[15] Ibid, p 22.
In his 1 July 2019 report, Mr Balfour concluded by expressing the following opinions with respect to the applicant:
(a)his general criminogenic profile is in the moderate range of risk (i.e. on a risk severity rating scale of low, moderate, and high) for coming into further legal conflict during the next twelve months;[16]
(b)the most likely explanation for his offending behaviour was that he succumbed to greed during a time of financial hardship;
(c)when combined with a comprehensive rehabilitation program, his aversive experiences of imprisonment will act as an effective personal deterrent against further offending behaviour;
(d)he presents as a potential risk to the community if released again;
(e)since committing his initial criminal offences during 2010, he has matured in custody and detention;
(f)with treatment for his primary criminogenic risk factors, his level of risk can be reduced to a level that is acceptable to the community;
(g)with the assistance of a supervised, structured rehabilitation program, his prognosis to cease offending is fair (on a prognosis writing scale of poor, fair, and good);
(h)he has developed insight into the importance of avoiding negative peers to ensure that he remains offence free; and
(i)the type of psychosocial problems that have contributed to his past offending behaviour would respond to strict community supervision and assertive case management.
[16] Ibid, p 25–26
Mr Balfour made specific recommendations regarding a structured rehabilitation program in his 1 July 2019 report.
In his second report dated 8 July 2019 Mr Balfour said:
(a)the rehabilitation services he has outlined are all freely available in the community for the applicant to access;
(b)the applicant would voluntarily comply with his rehabilitation recommendations because he simply has too much to lose; and
(c)the applicant’s participation in a comprehensive rehabilitation program will significantly reduce his risk of re-offending.
In his oral evidence, Mr Balfour expanded upon his opinion as to the applicant’s risk of recidivism if he were to engage with the rehabilitative support services publicly available to him. The following two points emerged:
(a)first, Mr Balfour considered that it was more likely than not that the applicant would engage with the support services that are freely available in the community; and
(b)second, Mr Balfour expressed his opinion that, were the applicant to engage with the available support services, the risk of the applicant reoffending would shift from the moderate range of risk to the low range of risk.
Parole Board evidence
Tammy Modra, Secretary/Executive Officer of the Parole Board, provided an affidavit annexing the documents produced under summons. The following evidence is derived from that material.
On 22 September 2014, the applicant applied for release on parole and a report was prepared dated 20 November 2014 in which the writer gave an assessment that:
given [the applicant’s] previous non-compliance with community orders and offending history, he may struggle to complete parole successfully, particularly given the likelihood of not complying with the intervention order. However, with appropriate supports in place such DV and psychological counselling, and [the applicant’s] ability and desire to cease his violent behaviour, he may successfully complete parole.[17]
[17] Exhibit 2, p 15.
On 10 March 2015, the Parole Board gave reasons for refusing to release the applicant and concluded:
[The applicant] is at risk of reoffending. In our view, he has little insight into his offending behaviour, and has attitudes which are inappropriate to justify his offending. He needs intervention for problem-solving and for violence, and he is currently unsuitable for release. He may re-apply after 16 February 2016. We would recommend that, in the intervening period, he undertakes some suitable intervention programs.[18]
[18] Ibid, p 21.
On 3 February 2016, the applicant re-applied for release on parole. He was interviewed and the Parole Board noted his submissions and resolved to defer his application pending the applicant being assessed for the family domestic violence intervention program.
The applicant was then assessed and a recommendation was made on 28 April 2016 that he was suitable for participation in the Making Changes program to commence at Mount Gambier prison in 2016. On 17 May 2016 the Parole Board resolved to defer his application pending the applicant completing the Making Changes Program and or the domestic family violence intervention program.
The applicant completed the Making Changes program and the Parole Board resolved on 3 November 2016 to release the applicant on parole subject to certain conditions including his continued good behaviour. On 18 July 2017, the applicant was released onto parole.
IS THERE ANOTHER REASON WHY THE DELEGATE’S DECISION SHOULD BE REVOKED?
When considering whether to revoke the decision of the Minister’s delegate, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[19]
[19] Direction 79, [6.1].
The guiding principles[20] from Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
·Australia has a low tolerance of any criminal or other serious conduct by those holding a limited stay visa reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
[20] Ibid, [6.3].

Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations:
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community — 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the applicant’s conduct to date; and
·the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
Relevant factors under this consideration include:
·the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
·the sentence imposed by the courts for a crime or crimes (with the exception of the preceding dot point); and
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The offending by the applicant may be categorized as comprising of deception offences, an aggravated assault on his spouse, driving offences and breaches of bail, intervention order and bond. These offences were all either summary or minor indictable offences and all were dealt with in the Magistrate Court as summary offences. The applicant entered a guilty plea to all offences. No offences were committed for trial and no witnesses were required to give evidence.
The Assault
The applicant pleaded guilty to an aggravated assault against his wife by slapping her cheek. He was 20 years old at the time of the offence. This is a crime of a violent nature against a woman and, as such, is viewed very seriously. It was noted by the sentencing Magistrate that the charge originally alleged a much more aggravated version of assault. That version is found in an affidavit of Mrs HGBY dated 19 July 2012 and includes a reference to punching and kicking on the day in question and to other episodes of violence towards her prior to the offence.
Under cross examination, Mrs HGBY accepted that the applicant slapped her but said that it was not that hard. When asked if her husband had ever been violent towards her she said that they had a fight once and went on to describe the slap. She denied there was any blood. Mrs HGBY said that what she wrote in the affidavit was correct but when asked specific questions she gave a different story.
The applicant’s mother was also cross-examined about her affidavit. She accepted that she signed the affidavit and when asked about it she explained that at the time she became angry and that he did not hit too hard. She said that the applicant was never violent again after July 2012.
The applicant under cross examination accepted that he slapped his wife to the face but said it was not a serious slap and that he did not see if her nose was bleeding. He said that he has never hit his wife on another occasion.
The evidence of any violence beyond the isolated slap incident is not clear and does not enable me to make any findings of fact that could be relied upon for the purposes of this matter. I will proceed upon the basis of the agreed version of events referred to by the sentencing Magistrate who made remarks on penalty dated 9 September 2013 as follows:
[25] This charge originally alleged much more aggravated vision of assault. It was an assault upon your young wife. She has provided a statement and she has made it plain that she does not wish to go to court and that she is embarrassed about the incident. There has been discussion about the factual basis of your plea in the lead up to sentencing today. Ultimately as it turns out, this will be one of the (whilst serious), less serious offences in the scheme of things, then some of the later offending. The prosecution relied upon and agreed version of events on the basis of your admissions to police that you slapped your young wife, causing redness to her cheek. I bear in mind that [the wife] had only been living in Australia for about two months and did not speak English. You and your wife were living in a home with your extended family, including your father and two younger sisters. Your young wife had no other family or friends in Australia and was completely reliant on you and your family. I bear in mind that she would have felt quite vulnerable.
[26] There was an incident on the night in question resulting in police coming to the home, where your young wife was seen by police cowering on the ground in a small sitting room, with blood trickling from her nose and a distinctive red cheek. I am asked by prosecution and defence to disregard the bleeding from the nose for the purpose of this plea in the sense that it goes beyond the scope of the basis of the plea.
[27] I will adopt that unrealistic course with one qualification, only because the prosecution seems to have bound themselves to it when they need not have done because the police observed bleeding from her nose and you acknowledged it also, but chose to give a particular interpretation of it. You say that she suffers from bleeding noses when she laughed. You gave that version of events to the report writer of the pre-sentence report.
[28] …
[29] When interviewed, you denied any punching or kicking which was originally alleged, but conceded that you slapped your wife on the left side of her face and that you knew that your actions were wrong and unlawful. I do give you credit for making those admissions.
[30] In oral submissions, I have been asked to accept that the incident took place in the context of a playful tapping of the cheek. I am not prepared to do that. In my view that would not amount to an assault and it is inconsistent with your plea. The plea is entered on the basis that the slapping of the cheek was intentional and unlawful and that you knew that it was unlawful.[21]
[21] Exhibit 1, p 36–7
In addition to the findings contained within the sentencing remarks, I find that the applicant was not violent again after the slapping incident in July 2012. It follows that, on the evidence, the violence was an isolated offence and there is no trend of increasing seriousness. I note that the sentencing Magistrate described the aggravated assault as “less serious” than some of the later offending, namely the offences involving deception, driving whilst disqualified and breaching an intervention order.
In conclusion, I take the view that the aggravated assault is an isolated but serious offence in particular because it involved violence against a woman who had only just arrived in Australia as a refugee and who was particularly vulnerable and in need of support.
Breach of intervention order
The applicant breached his intervention order on 28 July 2012 which was only about nine days after it was served on him. He rang his brother and told him that he was coming to the house to see his wife and children. A short time later he arrived and said sorry to his wife. She stated that at this time, she was not scared and that he did not enter the house, spoke to her at the doorway, staying only a few minutes. I note that the sentencing Magistrate rejected his explanation that he attended the house to get his property. I also note that ultimately the order was varied on 4 April 2013 with the removal of the strict conditions thereby allowing contact but that this variation was first applied for on 20 September 2012. Mrs HGBY sought the variation and said that since the original incident, there had not been further incidents and that she and the children missed him and wanted him back home again.
This offence brings with it a sentence of imprisonment of two years maximum and is therefore relatively serious. The circumstances of the offence causing no harm and the intervention order being sought to be varied so soon after its implementation both reduce the seriousness of the nature of the offending.
Driving offences
The applicant was convicted for driving whilst disqualified on 7 May 2010 after he had received a notice of six-month disqualification. The sentencing Magistrate found that the offending was contumacious. A disqualification for four months was imposed.
On 20 August 2014, the applicant was sentenced in the Magistrate’s Court for two offences of not paying for petrol in August and September 2013, three offences for driving whilst disqualified in September, October and November 2013, one offence of giving a false answer and for breach of a bond. He received a head sentence of three years and six months for the breach of bond and six months for the driving whilst disqualified. The sentencing Magistrate said:
[45] At this stage I am not able to come to any conclusions that there would be reasons for suspending the sentence, however… I am of the view that there is still an opportunity available for the defendant to be rehabilitated in a substantially non-custodial environment.[22]
Deception Offences
[22] Ibid, p 56.
There were numerous offences involving deception of persons selling motor vehicles and receiving Centrelink payments. In March 2011, the applicant took possession of a car paid for by a cheque which was then cancelled. The applicant then sold the car two days later. The applicant was convicted of passing a valueless cheque for this conduct and required to pay compensation.
Also in 2011, the applicant committed a fraud on persons using the Centrelink system by redirecting benefits due to those people to him. He was sentenced to five months imprisonment and required to repay $8,698.58. There were further offences involving dishonoured cheques and vehicles in August and December 2012 and March 2013. On 2 March 2013, the applicant sold a vehicle on the basis that it was unencumbered when it was not. The applicant pleaded guilty and was sentenced to 20 months imprisonment and required to pay compensation.
With respect to the Centrelink offences the sentencing Magistrate said in her remarks dated 17 April 2015:
[9] You suggest that you committed the offences because somebody showed you what to do. I consider you committed the offences because you are greedy, antisocial and disrespectful to others. It is chilling to think that you would pretend to befriend somebody who was vulnerable and cheat them.[23]
[23] Ibid, p 31.
When sentencing for offences in relation to deception the Magistrate, in her remarks dated 9 September 2013, said:
[109] Notwithstanding the lack of any relevant previous convictions, in my view the course of offending and the nature of the offending is so serious when viewed together, that it calls for a term of imprisonment. …
[122] As to the questions of suspension, I have serious reservations about prospects of rehabilitation here however I am very mindful of the personal, cultural and possible traumatic matters in your past. Whether or not your prospects of rehabilitation are going to be reasonable depend on you developing insight into your offending and the consequences for you and others if you continue to offend. I’m not very confident at all about your prospects but I am mindful that you have not re-offended in recent months, yet you have frustrated the completion of the court process in the lead up to today.
[123] In all of the circumstances, given that you have virtually no previous convictions, I am prepared to find good reason to suspend today.[24]
[24] Ibid, p 47–8.
The Centrelink deception offences involved the applicant targeting vulnerable members of the community and are taken to be particularly serious.
Conclusion as to nature and seriousness of conduct
The applicant’s criminal history demonstrates an ongoing pattern of offending between May 2010 and November 2013. The applicant has been convicted of repeat offences, namely five counts of vehicle deception between August 2012 and March 2013, two counts of dishonestly dealing with property on 15 August 2012, two counts of making off without payment on 22 August 2013 and 21 September 2013, four counts of driving under disqualification (once on 7 May 2010 and three times between September and November 2013), and 13 counts of Centrelink deception committed between April and September 2011.
I take into account the cumulative effect and frequency of this repeated offending. I note that offences have been committed against vulnerable members of the community such as Centrelink recipients. On the other hand, I note that the offence involving violence is an isolated offence and that there was no further offending of any nature in the period from 18 February 2014 until 27 July 2014 leading up to the applicant’s 3 year incarceration. I also take into account that the applicant did not contest and pleaded guilty to all final charges.
I conclude that the nature of the applicant’s offending is very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents a risk to the Australian community, I have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further domestic violence then the nature of the harm to Mrs HGBY would be very serious. Mrs HGBY herself said it would be unacceptable and that she would have no hesitation in calling the police. As for further crimes of the nature committed by the applicant, they too would have a serious impact upon the victims.
Likelihood of further criminal or other serious conduct
In assessing the likelihood of the applicant engaging in further criminal or other serious conduct, I have taken into account the available information and evidence on the risk of the applicant reoffending. I give considerable weight to the expert evidence from Mr Balfour whose evidence is summarised above. I consider Mr Balfour to be independent and authoritative on the question of recidivism.[25] I also give weight to the affidavit and attachments from Tammy Modra, Secretary/Executive Officer of the Parole Board.
[25] Direction 79, [8(2)].
Since 2014, the applicant has spent three years in prison and two years in detention. The applicant is now 27 years of age. He was between 18 and 22 years old at the time of his offending. Whilst in prison, the applicant spent time improving his employment prospects and trying to rehabilitate himself. He completed a certificate in English and a Certificate II in Civil Construction. He completed a St John’s first aid course, a Kairos Short Course in Christianity and Leadership, an Eat to Live program, and an Occupational Health and Safety Course. He completed phases one and three of the Making Changes Program. He did not do phase 2 because it related to drug and alcohol problems which do not affect him.
In his witness statement dated the 30 November 2017 the applicant said:
The Making Changes reinforced that leaving prison was an opportunity to start a new life. That I need to carefully consider my choices so that I am steering my life in a positive direction.
It reinforced the need to steer my own direction in life, to build up my employment prospects, to find work, and to rebuild my relationships with my family that I can help them out when they needed and because they will provide a strong support network to me to make the right choices if times get tough again in the future. I have also obtained a further support in Pastor Allan from the Unley Baptist Church.
It also reinforced what I had come to realize about the benefits of leading a law-abiding lifestyle, not just for my own benefit and not just out of respect and appreciation for my family but for the community that has been willing to offer me so much since I came to Australia.[26]
[26] Exhibit 1, p 1115.
The applicant gave oral evidence that he speaks to his three children every day by telephone after school and helps them with their homework. He also has dealings with the school regarding his children. He speaks to his wife every single day for hours on end. I find that the applicant is doing everything possible to maintain a loving and supportive relationship with his children and his wife whilst in detention. He has a genuine desire to be with them so that he can love and support his wife and children. If released, there is a real incentive for the applicant to avoid further offending because he knows that he would be removed from his family as a result. He does not want to return to Afghanistan because it is very dangerous and he has no family there. He understands that, by his offending, he hurt his family and his victims. The applicant expressed genuine insight and remorse about his past behaviour. He said he will complete the rehabilitation program recommended by Mr. Balfour in his reports. Based upon the applicant’s stated intention and the significant incentives for him to do so, I find that it is very likely that he will complete the rehabilitation program. I also note that Mr Balfour holds the same view that the applicant, if released, would complete the recommended program.
I have considered the oral and written evidence from the applicant and conclude that he has a genuine desire to participate in the community and to not reoffend. I consider that there is a risk based upon his previous offending that he will reoffend but my view is that the risk is low. My view is supported by the opinion of Mr. Balfour who met with the applicant and prepared the two reports and gave oral evidence at the hearing. I refer to the paragraphs above setting out the evidence of Mr. Balfour. In summary, Mr. Balfour considers that the applicant has matured since being in prison and has developed a genuine insight into why his previous offending was wrong. This is consistent with the Parole Board who resolved on 3 November 2016 to release him after his successful completion of the Making Changes program. It is also consistent with the evidence of Mrs HGBY who said he had matured since being in prison and spoke more respectfully to her. It is evident from all of the evidence that the applicant’s participation in the Making Changes program in 2016 has played a significant role in rehabilitating him. I note that in August 2014 the sentencing Magistrate expressed the view that “there is still an opportunity available for the defendant to be rehabilitated in a substantially non-custodial environment.” I consider that the applicant has commenced that process of rehabilitation and that the prospects of concluding that process are very good.
Mr Balfour considers that the applicant would respond well to a structured rehabilitation program. He believes that the applicant will voluntarily comply with his rehabilitation recommendations and, on that basis, he expressed his opinion during the hearing that the applicant presents a low risk of reoffending.
I was very impressed with Mr Balfour as an expert witness. His two written reports are very thorough. In his report dated 8 July 2019, he expresses his belief that the applicant’s participation in a comprehensive rehabilitation program will significantly reduce his risk of reoffending. Mr Balfour was asked during the hearing about the reduction in the risk of offending if the applicant avails himself of the rehabilitation services and he said that the risk would reduce from the moderate to the low range. I note and accept Mr Balfour’s opinion expressed in his written report that if the applicant did not complete the recommended rehabilitation program then there would be a moderate (as opposed to a low) risk of reoffending.
Risk to the Australian community

In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. I find that the nature of the harm is serious, but that the likelihood of the applicant reoffending is low based upon my finding that the applicant will likely complete a rehabilitation program. I take into account that the applicant needs to complete the recommended rehabilitation program in order for his risk of reoffending to reduce from moderate to low but I consider the chance of him not completing the program to be low.
On a cumulative basis, I find that there is a low to moderate risk to the Australian community under paragraph 13.1.2(1) of Direction 79. I base this finding on:
(a)the serious nature of harm if the applicant were to reoffend, the fact that he reoffended after receiving a suspended sentence;
(b)the steps towards rehabilitation and self-improvement that he took whilst in prison;
(c)his strong family support network;
(d)the strong incentives for him to not reoffend in particular the love for his children and desire to be part of their growing up;
(e)his genuine desire to participate in recommended rehabilitation programs but that there is a small chance that he will not participate in such a program; and
(f)the evidence from Mr Balfour.
I note that the Principle 6.3(4) in Direction 79 provides that in some circumstances, criminal offending and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. I do not consider that the risk of the applicant engaging in further criminal conduct is unacceptable.
Conclusion as to protection of the Australian community
The primary consideration of protection of the Australian community weighs in favour of not revoking the cancellation decision. The serious nature of the criminal offending exposes the Australian community to a risk of further offending but that risk is low because of the family support and steps towards rehabilitation taken by the applicant and the further steps that I have found he will likely take.
The best interests of minor children in Australia — 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I have to take into consideration the best interests of any children in Australia that are under the age of 18 years.
The following factors that I must consider and are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct and whether that conduct has or will have a negative impact on the child;
·the effect that any separation from the applicant would have on a child;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child.
The applicant is the father to three boys that are all under the age of 18. The eldest child is 11 years old, the middle child is 10 years old and the youngest child is 5 years old.
The nature and duration of the relationship between the child and the applicant
For the two years that the applicant has been detained at the detention centre, he has had daily contact with his children. He speaks to all three of his children before they go to school and again when they arrive home in the afternoon.
When the applicant calls the children in the afternoon it is generally by video. He assists the children with their homework as his wife’s English is not good enough. When the children have completed their homework, he remains on the phone with them and watches them play video games together. He gives the children advice on what to do next in the game. He also talks with his children together and tries to teach them how to live a good life and not repeat the mistakes that he has made.
Despite the impediment of being in detention for the last two years and in prison three years before that, I find that there is a strong and loving relationship between the children and their father.
The applicant’s evidence about the nature and duration of his relationship with all three of his children was corroborated by his wife, father and mother. It is also consistent with the evidence from the teachers at the schools. In response to a question of how much contact the applicant has with his children, the applicant’s father stated “if you check the phone I am sure it is more than 6 to 8 hours in a day”.
I take into account that the applicant has been absent from his children for the last 5 years but I was impressed by the efforts the applicant has made to be in regular contact with his children in the last two years whilst in detention.
The extent to which the applicant is likely to play a positive role in the future
I find that it is likely that the applicant will play a positive role in the future. He will be able to support all three of his children emotionally and financially particularly as they grow older and their needs increase. It has been noted by the youngest child’s school teacher that in a conversation she had with the applicant, he stated that he would like to be able to assist with the upbringing of the youngest child and ensure he attends school regularly.
It is clear that the applicant loves his children. If allowed to stay in Australia he intends to make up for the last 5 years during which he has not been physically with his children. The children are still well short of 18 years old and I take into account that if released the applicant will be able to support his children as they grow up and in particular during the adolescent years.
The impact of the applicant’s prior conduct and any likely future conduct and whether that conduct has or will have a negative impact on the child
It is indisputable that the applicant’s prior conduct of slapping his wife and the subsequent police attendance would have had a negative impact on all three of his children. It has been noted by the teacher of the applicant’s two eldest children that the applicant’s incarceration has caused “turmoil and trauma in their lives”. Given the low risk of any domestic violence in the future, the children are unlikely to be adversely impacted by future conduct.
The effect that any separation from the applicant would have on a child
Ongoing separation from his children will have a significantly negative effect upon them. The youngest child is often absent from school because the wife cannot get him there. The applicant could help get the children to school and generally support them which would only have positive effects on the children. The situation for the children has recently become worse and is likely to further deteriorate given that the applicant’s father is not well and can no longer drive. Each child would benefit from the support and love that the applicant could provide directly to them and his wife if he were released.
Whether there are any persons who already fulfil a parental role in relation to the child
The children are predominantly looked after by their mother. In the past, the applicant’s parents were involved in their care but this has become more difficult with time. Although I accept that there is someone already fulfilling a parental role, I note that in the last two years the applicant has, although not physically present, done his best to fulfil the role of a father and that would be much more difficult if the visa cancellation was not revoked. Whilst the mother fulfils a parental role, the evidence establishes that she is struggling in that role.
Any known views of the child
The children have expressed a view that they want their father home. Mrs HGBY has expressed a very strong and heartfelt plea for the return of the applicant to the family. The letters from the school teachers provide support for the applicant to be returned to help with the children.
Conclusion as to best interests of the children
The interests of the children weigh heavily in favour of revoking the cancellation decision. It is in the children’s best interest for their father to be returned to them so that he can help with their school activities and provide the love and care that children need at the age of 11, 10 and 5 years. The evidence establishes that Mrs HGBY is struggling to bring up the children without support from the applicant. The children, Mrs HGBY and the grandparents have all given evidence that they want him home because the children will be better off if he is supporting them and Mrs HGBY. It is not too late for the applicant to have a more meaningful influence on his children before they are adults but that will only occur if he is able to be with them.
Expectations of the Australian community
In YNQY v Minister for Immigration and Border Protection,[27] Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant.
[27] [2017] FCA 1466.
In exercising my discretion, I am informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The offence of slapping his wife is of particular concern and a non-citizen who has committed such a serious crime should generally expect to forfeit the privilege of staying in Australia.
As to the future, there is a risk of further offending but I have found that risk is in the low range meaning that it is more likely than not that the applicant will be law-abiding if he is allowed to stay.
Taking into account the serious nature of the offending but the good prospects of rehabilitation and his family needs and desires, I find that the expectations of the Australian community weighs in favour of non-revocation of the cancellation decision.
Other considerations
International non-refoulement obligations
The applicant contends that he would face harm if returned to Afghanistan and that the Tribunal needs to consider Australia’s international non-refoulement obligations.
Paragraph 14.1(1) of Direction 79 outlines Australia’s non-refoulement obligations pursuant to international human rights treaties and the 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”. Direction 79, at paragraph 14.1(4), also states:
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
The applicant has made various claims with respect to non-refoulement obligations. First, his father was granted a permanent protection visa on the basis that he was a target of the Taliban who had murdered his brother (the applicant’s uncle). The applicant claims that his father’s claims for protection, which were accepted, extend to him as well. The reason he did not receive a protection visa when he first came to Australia was because he was granted a family reunion visa. Second, the applicant claims that his life is in danger because he has not obeyed Islamic law by having sexual relations outside of marriage and fathering a child outside of marriage. Third, the applicant claims that he would be targeted as a result of his apostasy. The applicant gave evidence that he had renounced his Islamic faith and, although he now practises no religion, he did, to a certain extent, practise Christianity whilst imprisoned. Fourth, the applicant expressed a fear of harm as a returnee. The applicant claims that the fact he has been living in a western country places a target on his back. He stated that, if he were to return, he would not remain clean shaven as this would draw attention to him and label him as an outsider.
The applicant has in the past made an application for a protection visa. He withdrew that application after it remained undetermined for three years. The applicant gave evidence that he withdrew the application out of frustration and not because he did not believe that he is owed protection. The applicant is not barred from lodging a further application for a protection visa.
The recent decision of DOB18 v Minister for Home Affairs[28] has provided some useful clarification that is relevant to the question of whether the Tribunal is required to make a determination in relation to international non-refoulement obligations. Logan and Robertson JJ upheld the contention of the Minister that, because the non-citizen was not barred from subsequently applying for a protection visa and the subject of his refoulement would then arise for consideration, the Minister (and by extension the Tribunal) was not obliged to consider the subject of the non-citizen’s expulsion.
[28] [2019] FCAFC 63.
I am also guided by the recent decision of Bromwich J in GCLV v Minister for Home Affairs.[29] Bromwich J disagreed with the applicant in that case that the Tribunal had fallen into jurisdictional error by adopting the views of Flick J in Ali v Minister for Immigration and Border Protection[30] to the effect that non-refoulement claims could be addressed in a separate protection visa application assessed in accordance with Direction 75. Bromwich J further stated:
The applicant was clearly able to make a valid application for another visa, relevantly a protection visa, if the visa cancellation decision was not revoked, as happened… In those circumstances, in compliance with the express terms of [14.1(4)] of Direction 65, it was expressly not necessary for the Tribunal to determine whether non-refoulement obligations were owed to the applicant for the purpose of determining whether the visa cancellation decision should be revoked.[31]
[29] [2019] FCA 845.
[30] [2018] FCA 650.
[31] GCLV v Minister for Home Affairs [2019] FCA 845, [13].
On that basis, I am satisfied that I do not fall into jurisdictional error by deferring consideration of non-refoulement obligations until the determination of any application for a protection visa.[32]
[32] GBV18 v Minister for Home Affairs [2019] FCA 1132, [83].
However, in deferring consideration of non-refoulement obligations, I am not released from “considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations”.[33] The applicant expressed a fear of persecution, or at least gross discrimination, upon return to Afghanistan. The applicant described how in the past, when he has had to return to Afghanistan, he has needed to be very clandestine. He was unable to leave the house where he was staying for fear of being recognised. The applicant also feared harm on the basis that his uncle, who had been killed by the Taliban, was an employee of the government and that the Taliban would attribute his uncle’s political opinion to him. Further, he fears he will be targeted on the basis that he left Afghanistan to live in a non-Muslim, western country. I accept the applicant’s evidence in this regard.
[33] Ibid, [87]; Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216, [28].
I accept that there is a risk of harm if the applicant is required to return to Afghanistan and that such a risk weighs in favour of revoking the visa cancellation.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 79 requires me to take into consideration the strength, nature and duration of ties to Australia. I must have regard to:
(a)how long the applicant has resided in Australia, including whether the applicant arrived as a young child, noting that:
(i)less weight should be given where the applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to time the applicant has spent contributing positively to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the applicant’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has lived in Australia for 11 years having arrived as a refugee in June 2008 at the age of 16 years. The applicant committed a driving offence in 2010 but the more serious offending took place between 2011 and 2013 when the applicant was 19 to 21 years old. The applicant attended a senior college when he first arrived in Australia. From August 2009 to January 2010 he worked in a meat processing factory and then he moved on to a poultry supplier. I conclude that there was a period of contribution to the Australian community but not a long period. Although the applicant has lived in Australia for 11 years, he did commence offending relatively soon after arriving and he has been in custody or detention (and therefore away from the community and his family) for more than half of that time. In these circumstances, I do not place any positive weight on the length of time in Australia.
On the other hand, the applicant has very strong family ties with Australian permanent residents. It was very clear from the evidence of the applicant’s wife and his parents that non-revocation would have a detrimental effect on the applicant’s extended family which is a very close knit unit.
The applicant’s wife has given evidence of her complete reliance on the applicant with respect to most day-to-day tasks. Due to her poor English skills, she requires the applicant to act as her translator when she leaves the home. Furthermore, now that the applicant’s parents are not able to help out as much, the responsibility of raising three children rests primarily on her shoulders. She is not coping with this responsibility and she needs her husband to support her.
The impact on the applicant’s children has been discussed previously. However, I will reiterate that non-revocation would have significant adverse impacts on the growth and development of the children.
In my opinion, the strength, nature and duration of ties referred to in paragraph 14.2(1)(b) of Direction 79 weighs heavily in favour of revocation of the cancellation decision.
Impact on Australian business interests
The cancellation of the applicant’s visa does not have any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
I have not received any direct evidence with respect to the impact non-revocation would have on the victims of the applicant’s criminal behaviour and their family members. However, I note that there are court orders in place requiring the applicant to pay compensation to the victims of his dishonesty offences. As at today, that compensation remains unpaid. If the visa remains cancelled, the compensation will never be paid. If the visa is reinstated and the applicant is able to find employment then he will have the capacity to pay the compensation. This is a consideration which weighs slightly in favour of revocation but to no significant extent.
Extent of impediments if removed

The final consideration is the extent of any impediments that the applicant may face if removed from Australia to his home country, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). Direction 79 requires me to take into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the applicant in that country.
The applicant has not lived in Afghanistan since he was 8 years old. He has no family there that could support him on his arrival. The applicant is now 27 years old. He is in relative good health. There would be no language or cultural barrier if he were to return to Afghanistan.
The applicant has a history of mental health problems. It is highly unlikely that he will be able to seek treatment for his problems if he was to return to Afghanistan. The DFAT Country Information Report – Afghanistan that was published in June 2019 notes the following:
For the vast majority of the population, however, there are significant barriers to accessing treatment for mental health issues, including considerable cultural stigma surrounding mental illness and a lack of outpatient mental health services.[34]
[34] Exhibit 2, p 54.
As the applicant has not family in Afghanistan who would be able to support him, he would be required to find work immediately. This would be a difficult task as “few Afghans have access to productive or remunerative employment. A quarter of the labour force is unemployed, and 80 per cent of employment is vulnerable and insecure”.[35]
[35] Ibid, p 52.
A further impediment is the very real risk of harm that I have found the applicant will face if returned to Afghanistan. I have dealt with this under the heading of non-refoulement.
A further potential impediment is the applicant’s choice to break away from the Islamic faith. Moreover, although the applicant is currently not following a particular religion, he has been involved with the Christian church in Australia. Non-Muslims “face considerable societal discrimination, which may include violence, in addition to the economic and security challenges experienced by other Afghans”.
On a whole, I am satisfied that this consideration weighs in favour of revocation of the cancellation decision.
Conclusion as to whether there is another reason to revoke the cancellation decision
I conclude that there is another reason why the cancellation decision should be revoked. In coming to that conclusion I have weighed up the primary and other considerations referred to above. There are considerations that weigh both for and against revocation.
The primary consideration in favour of revocation is the best interests of the children who are 11, 10 and 5 years old. The applicant’s wife is struggling to look after these children without her husband. The applicant’s parents are not able to give the support they used to because of their age and deteriorating health. If the applicant is not returned to the family unit then I consider that the ongoing impact on the children is unacceptable. The other considerations in favour of revocation are the strength, nature and duration of ties; the impact on victims; and the extent of impediments if removed. I place significantly less weight on these other considerations but nevertheless they do add to the weight of factors in favour of revocation.
The primary considerations against revocation are the protection and expectations of the Australian community. The applicant’s offending was serious. Vulnerable members of the community were targeted and taken advantage of financially. The slap to his wife constitutes domestic violence and can never be condoned. On the other hand, the slap was an isolated event and the wife gave compelling evidence that she wanted him back to help bring up the children and that he had shown her that he had changed and would not reoffend. I note that they lived together without a further incident after the episode of domestic violence and before he was imprisoned in August 2014. To that limited extent he has proved himself. However, most importantly, there is also the professional opinion of Mr Balfour with respect to his maturity and positive prospects of rehabilitation and low risk of recidivism. Without this independent and authoritative evidence it would have been difficult to find in favour of revocation. Mr Balfour’s evidence supports my finding that there is a low to moderate risk to the Australian community.
I find that the children’s interests outweigh the protection and expectations of the Australian community. They should not have to suffer when the risk of harm to the Australian community in the future is at an acceptable level. The other considerations in favour of revocation add weight to the primary consideration of the children’s interests so that together they significantly outweigh the protection and expectations of the Australian community.
DECISION
The decision of the Tribunal is to set aside the delegate’s decision and to substitute a decision to revoke the cancellation decision.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

.......................[sgnd].............................
Associate
Dated: 2 August 2019

Dates of hearing: 10–11 July 2019

Representative for the Applicant Ms K Eaton instructed by Bourne Lawyers

Representative for the Respondent Mr J Hutton instructed by Minister for Home Affairs

[2019] AATA 2352

2 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	10–11 July 2019
Representative for the Applicant	Ms K Eaton instructed by Bourne Lawyers
Representative for the Respondent	Mr J Hutton instructed by Minister for Home Affairs