HNGT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

HNGT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4493 (1 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6645
Re:HNGT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:1 December 2023
Date of written reasons: 19 January 2024
Place:Sydney

The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision is affirmed.
...….................................[SGD]....................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under section 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision following NZYQ – family violence offences – impediments to removal – non-refoulement obligations – reviewable decision affirmed
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES

CRNL and Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
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 Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
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 545
Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116
SECONDARY MATERIALS

Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION

Senior Member Dr Linda Kirk
19 January 2024

HNGT (‘the Applicant’) is a 38-year-old national of Zimbabwe.[1] He arrived in Australia on 15 July 2005 aged 19 years as the holder of Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.[2]
[1] Exhibit R1, GD,103.
[2] Exhibit R2, RTB, 11.
On 31 July 2009, the Applicant applied for a Class XA Subclass 866 Protection visa,[3] following the refusal of his application for a further student visa.[4] The visa (‘the Protection visa’) was granted on 21 October 2009.[5]
[3] Exhibit R1, GD, 177.
[4] Exhibit R2, RTB, 21.
[5]Exhibit R1, GD,182.
On 30 August 2011, the Department of Immigration and Citizenship (‘the Department’) sent the Applicant a Notice of Intention to Consider Cancellation (‘NOICC’) of the Protection visa under section 501(2) of the Act.[6]
[6]Exhibit R2, RTB, 24-29.
On 2 May 2012, the then Minister for Immigration and Citizenship decided not to cancel the Applicant’s Protection visa and provided him with a formal warning about the consequences of re-offending.[7]
[7]Exhibit R1, GD, 172ff.
On 17 December 2019, the Applicant was convicted and sentenced, on his pleas of guilty, in the Brisbane District Court for one count of Rape (domestic violence offence) and three counts of Indecent Treatment of children under 16 Lineal Descendant/ Guardian/Carer, which were also categorised as domestic violence offences (‘the sexual offences’).[8] The Applicant’s victim was his stepdaughter, who was under 16 years of age at the time of the offending. In respect of the rape conviction, the Applicant was sentenced to seven years’ imprisonment.[9] In respect of the indecent dealing offences, he was sentenced to two years’ imprisonment on each count, to be served concurrently.[10]
[8]Ibid, GD, 36.
[9]Ibid, GD, 34-35.
[10]Ibid, GD, 36.
On 16 January 2020, the Applicant’s Protection visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘the 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).[11] At the time, the Applicant was serving a sentence of full-time imprisonment at the Wolston Correctional Centre for an offence against a law in Australia.
[11] Ibid, GD, 182.
The Applicant was notified of the Mandatory Visa Cancellation Decision on the same day, and invited to make representations to the Respondent about revoking the Decision within 28 days of receipt of the Decision.5F[12] That notice did not comply with the requirements of the Act as identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[13] and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[14] Consequently, the Department re-notified the Applicant on 25 February 2022.[15]
[12] Ibid, GD, 182ff.
[13][2021] FCAFC 173.
[14][2021] FCAFC 174.
[15]Exhibit R1, GD, 193ff.
On 23 March 2022,[16] within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[17]
[16]Ibid, GD, 127.
[17]Ibid, GD, 99.
On 7 September 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’).[18] On 8 September 2023, the Applicant was notified of the Reviewable Decision by hand.[19]
[18]Ibid, GD, 10-32.
[19]Ibid, GD, 243.
On 8 September 2023, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[20]
[20]Ibid, GD, 1-9.
On 20 November 2023, the Applicant was released from immigration detention into the community as a consequence of the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (‘NZYQ’).[21] On 21 November 2023, the Applicant was granted a Class WR (Removal Pending) Bridging R (subclass 070) visa (‘BVR’).
[21][2023] HCA 37.
The matter was heard by the Tribunal on 22 and 23 November 2023. The Applicant attended the hearing in person, gave oral evidence and was represented by his solicitor.
The following witnesses gave oral evidence by telephone at the hearing:
·TM – the Applicant’s aunt
·TU – the Applicant’s friend
·KN – the Applicant’s friend
·TK – the Applicant’s family friend
·BN – the Applicant’s friend
The material before the Tribunal consists of:
- Section 501 G-Documents (GD, G1 – G6, pp. 1 – 243) filed 22 September 2023 – Exhibit R1
- Respondent’s Tender Bundle (RTB, pp. 1 – 64) filed 2 November 2023 – Exhibit R2
- Respondent’s Supplementary Tender Bundle (pp. 1 – 5)
- Respondent’s Statement of Facts, Issues and Contentions dated 3 November 2023 (‘RSFIC’)
- Respondent’s Supplementary Submissions dated 20 November 2023
- Applicant’s Statement of Facts, Issues and Contentions filed 20 October 2023 (‘ASFIC’)
- Applicant’s Submissions dated 15 November 2023
- Applicant’s Supplementary Submissions on NZYQ dated 21 November 2023
- Joint Select Committee on Australia’s Immigration Detention Network – Final Report filed on 20 October 2023
- Applicant’s Statutory Declaration dated 10 October 2023
- Applicant’s Certificates filed on 20 October 2023
- Forensic Psychological Risk Assessment by Dr Gavan R. M. Palk (Forensic Psychologist) dated 13 October 2023
- Statements in support of the Applicant filed on 20 October 2023
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 decides 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.[22]
[22] 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.[23] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’
[23]Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Although primary considerations are generally to be given greater weight (clause 7(2) of Direction 99), they are not hierarchical and other considerations can outweigh primary considerations.
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 subsection 501CA(4) of the Act to revoke the Mandatory Visa Cancellation 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 subsection 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[24] 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...[25]
[24] [2018] FCAFC 151.
[25] 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
Early years in Zimbabwe

The Applicant was born in Seke, near Harare in Zimbabwe. He has one older brother and a younger sister.[26] The Applicant’s parents separated when he was about to commence high school.[27]
[26] Applicant’s Statutory Declaration, [1].
[27]Ibid, [9].
The Applicant’s father was a member of the Movement for Democratic Change (MDC).[28] The MDC was ‘very active’ and ‘very influential’ in the country as it had a large membership.[29] His father was the lead recruiter for ‘recruiting thugs’ for the MDC,[30] and was involved in ‘looting, bashing and violence for the party’.[31] When the Applicant was a child aged approximately nine, he was forced to put up flyers and posters supporting the MDC, and recruit other young people or ‘bully them to understand that they have to do what they are told.’[32] He also was taught to do the looting and sometimes the bashing.[33] The Applicant told the Tribunal that he ‘didn’t have a choice’ not to be involved in these activities, and if a young person did not participate they would ‘face consequences’, for example, their family would be attacked or they would ‘disappear’.[34]
[28]Ibid, [2].
[29] Transcript of proceedings, 22 November 2023, 12.
[30]Applicant’s Statutory Declaration, [3]; Transcript of proceedings, 22 November 2023, 11.
[31]Dr Gavan R. M. Palk report, [3.1].
[32] Transcript of proceedings, 22 November 2023, 12.
[33] Applicant’s Statutory Declaration, [8]; Transcript of proceedings, 22 November 2023, 11.
[34] Transcript of proceedings, 22 November 2023, 11.
As a child, the Applicant experienced physical abuse and witnessed domestic violence and alcohol abuse at home. He was beaten by his father and witnessed his father beating his mother and siblings.[35] He saw his father sexually harass girls and women, and touch women without their consent.[36]
[35]Applicant’s Statutory Declaration, [5].
[36]Ibid, [7].
The Applicant’s father was assassinated by members of the Zimbabwe African National –Union - Patriotic Front (‘Zanu-PF’) which has been the ruling party in Zimbabwe since independence in 1980. His uncle told him that his father ‘has done a lot of bad things’ and he had been abducted and was not coming back.[37] The Applicant’s did not see his father’s body following his death.[38] The Applicant told Dr Palk, Forensic Psychologist:[39]
my father was killed by Zanu thugs, they came to the village, took my father way, I saw them beating people and dragging them away. This was the last time I saw my father; I was 10.
[37] Transcript of proceedings, 22 November 2023, 12.
[38] Applicant’s Statutory Declaration, [10].
[39]Dr Gavan R. M. Palk report, [3.1].
After his father died, the Applicant’s mother struggled to raise the family. They were assisted by members of the MDC to pay for food and tuition fees.[40] The Applicant continued to be forced by his uncles to participate in political activity.[41] His mother and sister escaped to South Africa in about 2006 and his brother went to India.[42] His brother now lives in the United Kingdom, and his mother and sister remain in South Africa.[43] The Applicant and his family members have never returned to Zimbabwe.[44]
[40]Applicant’s Statutory Declaration, [11]; Transcript of proceedings, 22 November 2023, 13.
[41] Transcript of proceedings, 22 November 2023, 13.
[42]Ibid.
[43]Applicant’s Statutory Declaration, [13].
[44] Transcript of proceedings, 22 November 2023, 13.
Education and employment
The Applicant attended school until year 12 in Zimbabwe, and in 2005 he commenced a Bachelor of Commerce degree at Griffith University. He remained at University until 2008, when he discovered that he could make good money in the communications field.[45] He qualified as a communications technician and worked full-time while he was studying communications at TAFE.[46] He worked for Telstra as a Telecommunications Technician for five or six years until he was incarcerated.[47] He also has worked as a labourer, process worker, and in the office doing the payroll.[48] The Applicant has three units to complete to qualify for his Bachelor of Commerce degree, but he no longer has an interest in this field.[49]
[45]Dr Gavan R. M. Palk report, [3.3].
[46] Transcript of proceedings, 22 November 2023, 14.
[47] Applicant's Statutory Declaration, [19].
[48] Transcript of proceedings, 22 November 2023, 14.
[49]Dr Gavan R. M. Palk report , [3.4].
Former partner and son
The Applicant and his former partner, MH, met in 2011 and they commenced living together when they were aged about 28 years and married in 2012.[50] MH has a daughter from a previous relationship, who is the victim of the Applicant’s sexual offences (‘the victim’).
[50]Dr Gavan R. M. Palk report, [3.6];Transcript of proceedings, 22 November 2023, 14.
The Applicant and MH have a son, EAM, who is aged 10 years and is an Australian citizen. The Applicant has not been in contact with his son since 2019.[51]
[51] Applicant’s Statutory Declaration, [21]-[22].
Criminal history in Australia
The Applicant’s National Criminal History Check dated 24 January 2020 records his criminal convictions in Australia.32F[52]
[52] Exhibit R1, GD, G4, 34-35.
Early offending
The Applicant appeared before the Queensland Magistrates Court on two occasions in February 2006 for the offences of Stealing and Commit public nuisance for which he received a $450 fine without conviction and a six-month good behaviour bond respectively.[53]
[53]Ibid, GD, G4, 35.
On 11 May 2011, the Applicant was convicted in the Queensland Magistrates Court at of one count of Drive under the influence of alcohol and one count of Driving under disqualification. For each offence, he was sentenced to 14 months’ imprisonment, to be served concurrently, and he was disqualified from driving for a total period of six years. Additionally, he was convicted of Contravene direction or requirement but received no further penalty.[54] The Applicant was released to parole with the parole term ending on 10 July 2012.
[54] As Queensland driving offences are recorded separately, the Applicant’s offending in this category are not listed in his National Criminal History Check.
In his sentencing remarks for these offences, Magistrate Arnold drew attention to the Applicant’s poor drink driving record and noted that, while some of these offences were at the bottom end of the scale, he considered the Applicant’s criminal history to be ‘serious’ in nature.[55] The offences were in direct breach of suspended sentences imposed against the Applicant on 12 February 2010, and he was ordered to serve the whole of those suspended sentences concurrently with the head sentence. Magistrate Arnold remarked in relation the Applicant’s conduct, ‘…you continue to behave like an irresponsible idiot. You have no regard for the safety of other road users and your reading is .229.’[56]
[55]Exhibit R1, GD, G4, 43.
[56]Ibid, GD, G4, 42.
The Applicant re-appeared in the Magistrates Court on 17 May 2011, for one count of Possession of dangerous drugs (cannabis) which he committed on 28 April 2011.[57] He was sentenced without conviction to a good behaviour bond of four months’ duration, with ‘drug diversion’.
[57]Ibid, GD, G4, 35.
On 17 August 2012, the Applicant appeared before the Brisbane Magistrates Court for another count of Possession of dangerous drugs (cannabis) which he committed on 25 July 2012.[58] He was fined $400 without conviction.
[58]Ibid. See also RTB, 43.
On 9 January 2013, the Applicant again appeared before the Magistrates Court for one count of Stealing which he committed on 14 December 2012.[59] He was sentenced without conviction to a good behaviour bond of two months’ duration.
[59]Ibid. See also RTB, 47.
Sexual offences
The Applicant committed the sexual offences against the victim between 30 April 2018 and 5 May 2018.[60] He was in pre-sentence custody between 5 May 2018 to 7 May 2018 and from 9 July 2018.[61]
[60]Exhibit R1, GD, G4, 36.
[61] Ibid.
The circumstances and details of the Applicant’s offending are set out in the transcript of proceedings of the District Court of Queensland dated 17 December 2019. The offending occurred on two separate occasions. On the first occasion, the Applicant entered the victim’s bedroom and kissed her exposed bottom. He proceeded to touch her on the bottom inside of her clothing whilst watching a pornographic video. His offending was interrupted by him receiving a phone call prompting him to leave the room. On the second occasion the victim had pretended to fall asleep when the Applicant touched her bottom. He proceeded to pull her pants down and retrieved a knife to cut her underwear. He then rubbed coconut oil on the victim’s bottom. The Applicant then proceeded to move his fingers in and out of her buttock cheeks while masturbating. The Applicant then manoeuvred his penis between her buttock cheeks and tried to push his penis into her anus. He then pushed his penis into the victim’s vagina. This act amounted to the rape count. The Applicant was intoxicated at the time and subsequently fell asleep after the offending. The victim complained to her mother who immediately took her to the hospital to be examined. A forensic examination established that the victim had been sexually interfered with and further substantiated by the victim’s DNA being found on the Applicant’s penis.
The Applicant entered a guilty plea date two months before his sentencing. The sentencing judge, Richards DCJ, noted that this spared the victim from having to tender evidence in the Applicant’s court proceedings. In her sentencing remarks, Richards DCJ described the offending as ‘very serious’ because the victim was ‘very young’, a ‘vulnerable sleeping child’ and because the Applicant was in a position of trust and significantly, that in failing to use a condom he gave no thought to safeguarding the victim from pregnancy or disease.[62] Her Honour accepted that the Applicant was intoxicated on the second occasion, however stated that this did not affect the sentence she imposed.[63]
[62]Ibid, GD, G4, 39.
[63]Ibid.
The Applicant was eligible for release on parole from 5 November 2020, with the parole term expiring 5 July 2025.[64] He was released on parole and transferred to Villawood Immigration Detention Centre (‘VIDC’) on 30 November 2022, where he remained until he was released into the community on 21 November 2023.
Remorse and responsibility for offending
[64]Ibid, GD, G4, 48.
In a statement dated 21 March 2022, the Applicant conceded that he ‘took advantage’ of the victim – somebody he ‘loved’.[65] He stated that at the time he was experiencing financial and parenting stress, and his relationship with MH was deteriorating causing him to have a progressively negative view of her, which led to an increase in his alcoholism and feelings of jealousy.[66] He was using alcohol as a coping mechanism for his stress and would ‘externalise [his] negative mindset on somebody’ and sex was also a strategy that he used to placate issues within his relationship.[67]
[65]Ibid, GD, G4, 119.
[66]Ibid, GD, G3, 16.
[67]Ibid.
The Applicant stated that on the night of the rape offence, he ‘felt entitled’ to have sex with his partner, MH, and viewed it as a means of ‘healing’ the negative arguments and abuse that he had directed at her, who at the time was’ sick and tired’ of his behaviour and did not want to be intimate with him.[68] He considered his partner’s rejection of him undermined his ego as the ‘breadwinner’ and ‘dominant partner’ in the relationship.[69]
[68]Ibid, GD, G4, 124.
[69]Ibid.
The Applicant’s evidence is that on this occasion he was ‘so drunk’ that he continued ‘annoying’ the victim, who he described as having ‘the same build as her mum.’[70] He describes how the victim had expressed ‘hesitation’ but he failed to realise that he had initiated sex not with his partner but with the victim, who ‘was not legal for this type of act’, nor did he realise that he had ‘intimidated’ her into non-consensual sex.[71] He continued:
I had never quite understood the exact meaning or practicality of consent and legal age, how it applied to relationships, sex and general aspects of life until now.
[70]Ibid.
[71]Ibid, GD, G3, 16.
In his statement dated 25 March 2023, the Applicant stated that he is:
fully aware and deeply remorseful of the crimes I have committed and the pain it has caused to the victim, community and people around me and the parties involved in this case directly and indirectly.[72]
[72]Ibid, GD, G3, 18.
The Applicant expressed regret for his conduct which he described as a ‘coward act’ and ‘unacceptable.’[73] He regrets every moment of his offending and the impact on his family. In relation to the impact of his offending on the victim he wrote:[74]
I am aware that the hurt and pain she must be suffering will never fully cease to exist. However, I owe it to her, my partner & my son to learn from this massive mistake and work to reintegrate back into the Australian Community again without anyone fearing that I might reoffend or hurt again.
[73]Ibid, GD, G4, 120.
[74]Ibid.
The Applicant attributes his ‘upbringing’ in Africa and the ‘very different cultural environment’ for developing his ‘distorted’ understanding about relationships, consent and the legalities regarding the age of consent.[75] He states that he was ‘always’ raised in a male dominated, chauvinistic household, where men were somewhat ‘idolised’ and women were expected to be ‘doting and obedient.’[76] He describes his former partner, MH, as ‘outspoken, independent and strong’. He states that he would struggle to trust and respect her decisions and admits that he would ‘ignore or berate her in an effort to be obeyed.’[77] The Applicant claims that he comes from a family of women who taught him to treat women and children with respect, and that his offending is inconsistent with his ‘morals, values and upbringing’.[78]
[75]Ibid, GD, G4, 123.
[76]Ibid.
[77]Ibid.
[78]Ibid, GD, G3, 16.
During his interview with Dr Palk, the Applicant stated that he accepts full responsibility for his offending. The Applicant initially claimed that the rape and indecent dealings occurred on the same day, in the morning and later in the afternoon. He said that on that day, he had been drinking alcohol in the morning and had continued drinking during the day.[79] The Applicant told Dr Palk that ‘due to his alcohol problem at the time and difficulties with his partner he had been constantly in the habit of consuming alcohol daily and so his recollections of events surrounding his offending were vague.’[80] He ‘now accepts there were two separate occasions for the offending, and he accepts there were other instances he had entered [the victim’s] bedroom over a period.’[81]
[79]Dr Gavan R. M. Palk report, [2.28].
[80]Ibid, [2.29].
[81]Ibid, [2.30].
The Applicant indicated to Dr Palk that ‘alcohol alone was not the only factor for his offending.’ He stated, ‘that due to his upbringing and the culture in Zimbabwe he had developed a sense of entitlement for sex and that woman were inferior and to be dominated by men.’[82] He said that he ‘no longer held these views and had addressed his alcohol problem through a substance intervention course and [he] attends weekly recovery meetings coordinated by alcohol anonymous.’ ‘AA’).[83]
Rehabilitation
[82]Ibid, [2.31].
[83]Ibid, [2.32].
On 29 May 2020, after having previously agreed to be waitlisted, the Applicant was offered participation in the ‘Getting Started Preparatory Program’ (‘GSPP’), a six-week program and prerequisite to a subsequent sexual offenders program. The Applicant was reported to have presented as ‘resistant to attending … and cited his maintenance of innocence and resistant to treatment as reasons.’[84]
[84]Exhibit R1, GD, G3, 18.
Dr Palk questioned the Applicant about ‘his attitudes and his genuineness towards rehabilitation’ having regard to Corrective Services records which indicate he initially resisted attending the GSPP program. The Applicant explained to Dr Palk that when he was first approached to undertake the GSPP, he agreed to do so ‘but while waiting to commence the program he witnessed another prisoner being bashed who had undertaken the course.’[85] He told Dr Palk that ‘in the Unit he was accommodated [in] at the time he had been warned by other prisoners that if he did the sex offenders course, he would be bashed so he became resistant because he was fearful.’[86] He said that once he was placed in another accommodation unit, he completed both the GSPP and Medium Intensity Sexual Offenders Program (‘MISOP’).[87]
[85]Dr Gavan R. M. Palk report, [2.33].
[86]Ibid, [2.34].
[87]Ibid.
Following his first unsuccessful parole application in March 2021, Corrective Services reported that the Applicant continued ‘maintaining his stance of innocence’ on two separate occasions, and despite their recommendations, he remained reluctant to participate in targeted rehabilitation programs.[88]
[88]Exhibit R1, GD, G3, 18.
During cross-examination, the Applicant provided the following reason for his reluctance to participate in targeted rehabilitation programs:[89]
… at that time, … I felt a lot of guilt, shame, and embarrassment of my crimes, and I was scared to do the courses in that time, because of guilt, shame, and embarrassment, plus I just – I didn’t want to expose what I’d done to all the people in the group. I was just scared and embarrassed and had a lot of guilt for what I had done.
[89] Transcript of proceedings, 22 November 2023, 26.
During re-examination, the Applicant stated that he was reluctant to undertake the course because he feared being beaten up by other inmates. He stated:[90]
Because I’ve witnessed a lot of people in there that did the courses. And because of the nature of their crimes violence happens to them. So, they say they’re going to protect us there. But there’s always places where people can get you and beat you up.
[90] Ibid, 36.
The Applicant was asked if this is the reason why he hesitated to undertake the sex offender courses. He explained:[91]
No. That’s another thing. That’s part of it. And most of the thing was I was embarrassed of my crime. I felt shame. And I felt guilt for my crime. But I knew I needed to change. I need to face, have courage.
[91]Ibid, 37.
In a letter dated 12 April 2022 outlining its decision to refuse the Applicant’s second application for parole, the Parole Board Queensland (‘PBQ’) had regard to the ‘positive aspects’ of his application, namely that his sexual recidivist risk was measured as low and that he was willing to complete the relevant programs and comply with the conditions of a parole order. At this point in time, the Applicant had not undertaken the MISOP, and the PBQ expressed ongoing concerns that the Applicant posed an unacceptable risk to the community.[92]
[92]Exhibit R1, GD, G3, 18.
During cross-examination, the Applicant was questioned about the PBQ’s decision to refuse him parole a second time:[93]
… [That’s] why I commenced the courses, because I knew I had to make a change in my life, to be a better person, to take accountability of my actions. Because of the embarrassment I was feeling, and the shame, I had to have courage and do the courses for my benefit and for the benefit of the community.
[93] Transcript of proceedings, 22 November 2023, 26.
The Applicant told the Tribunal that he completed the MISOP between August and October 2022.[94] He said that he did not complete the course so that he would get parole; he did it to help himself.[95]
[94]Ibid.
[95]Ibid, 27.
The Applicant was released on parole by order of the PBQ on 30 November 2022, following his third parole application. The parole period ends on 5 July 2025 unless otherwise determined by the PBQ.[96]
Programs and courses
[96]PBQ Parole Order for the Applicant dated 26 October 2022.

The Applicant has undertaken a series of courses, certificates, and programs relevant to his offending and substance abuse issues. He listed these courses in his Statutory Declaration dated 10 October 2023:[97]
[97]Applicant’s Statutory Declaration, [33]-[53].
·Certificate of course completion: Anger Management 101
·Getting Started Preparatory Program
·Medium Intensity Sex Offenders Program
·Cognitive Behaviour Therapy;
·Low Substance Abuse Program;
·Certificate of course completion: Basic Parenting 101
·Certificate of Completion: How to quit looking at pornography and break a sex addition - 23 September 2023
·Certificate of course completion: Child abuse recognition, investigation, and protection - 12 September 2023
·Certificate of course completion: Child safety for parents - 12 September 2023
·Certificate of course completion: Domestic Violence 101 - 5 September 2023
·Certificate of course completion: Drug and Alcohol Abuse 101
·Certificate of course completion: Healthy Relationships - 18 September 2023
·Certificate of course completion: Positive Parenting Techniques - 31 August 2023
·Certificate of course completion: Sexual Harassment Compliance
·Certificate of completion: Sexual Violence, Rape and Exploitation - 22 September 2023
·Certificate of course completion: Single Parenting 101 - 3 September 2023
·Certificate of course completion: Stress Management
·Certificate of course completion: Understanding Addictions
·Certificate of course completion: Workplace Drug Use - An HR Guide
·Certificate of course completion: Workplace Sexual Harassment in the #metoo Era.
·Currently enrolled in Smart Recovery at Villawood Immigration Detention Centre.
In his Statutory Declaration dated 10 October 2023, the Applicant wrote:
The reason I did these courses is to rehabilitate myself for the crimes l have committed. By doing these courses I have come to understand the seriousness of what I have done; and have taken full responsibility for my actions.
…
These courses also helped me take full responsibility for my offending.
…
The rehabilitation courses I did played a crucial role in my understanding of sexual assault, child abuse, indecent treatment, and drug and alcohol abuse. These courses have been helpful and beneficial for me to learn and understand underlying issues with our family. These courses will help me re-integrate into the community. I am fully committed to change and become a better person, always.
During cross-examination, it was drawn to the Applicant’s attention that he completed many of these courses in August and September 2023, and he filed his review application with the Tribunal on 8 September 2023. He responded:[98]
I didn’t take these courses for the tribunal. I took it for my own self-reflection and to help myself be a better version for the community
Alcohol use
[98] Transcript of proceedings, 22 November 2023, 29.
The Applicant’s evidence is that he has abstained from alcohol for six years. In his Statutory Declaration dated 10 October 2023 he wrote:[99]
Most of my criminal history is related to alcohol. Abstaining from alcohol makes me a better person, and I would like to continue abstaining from alcohol.
[99]Applicant’s Statutory Declaration, [29].
Risk of re-offending
In his Statutory Declaration dated 10 October 2023, the Applicant wrote:[100]
I think my chances of re-offending are very low because I have spent time in gaol and immigration detention, and I have had time to rehabilitate, do courses, and abstain from alcohol. This has made me realise what I have done. Made me realise what I have to change in my life. I have to become a responsible father to my son; be a respectable good member of the community; and become a better person. This is my chance to correct my life.
I have learned that every action has consequences to myself and other people. So I should always use consequential thinking every time I make a decision or take an action. The way you think affects your emotions; and your thoughts affect your behaviour. It's very important to know and understand your own thoughts so you can control your own actions, because this affects your behaviour in society.
I also understand the devastating short-term and long-term consequences of sexual assault on victims. This can include psychological impacts; trauma; abuse of alcohol; maintaining abusive or unhealthy relationships; misogyny; violence; post traumatic stress disorder; suicidal thoughts; and so on. They can even get schizophrenia. They can experience lack of confidence in themselves when applying for work. They can experience lack of confidence or trust in men.
Psychological assessment
[100]Ibid, [59]-[61].
In his report dated 13 October 2023, Dr Palk reported:[101]
[The Applicant] meets the DSM-5 Criteria for posttraumatic stress disorder (PTSD) due to his traumatic childhood in Zimbabwe and he suffers an alcohol use disorder (currently in remission).
[101]Dr Gavan R. M. Palk report, [9.4].
Dr Palk noted that the Applicant had ‘taken active steps towards rehabilitation while on bail and during the time of his imprisonment’ including completing ‘relevant sex offenders and substance intervention programs.’ He reported that he ‘continues to participate in ongoing weekly alcohol recovery sessions.’[102]
[102]Ibid, [5.2].
Dr Palk further reported that the Applicant ‘displayed empathy for the victim of his offences and acknowledged the harm his actions caused his family and the community.’ He also ‘acknowledged his alcohol misuse and sexual gratification desires were major contributing factors in his offending behaviour.’[103]
[103]Ibid, [5.3].
Dr Palk reported the following observations he made about the Applicant, and what he told him about his future intentions:[104]
·He was able to appreciate the life effects of his sexual offences on the victim and the victim may suffer PTSD as he suffers from PTSD due to his traumatic background experiences.
·He displayed an awareness of the impact of being alcohol dependent and that it is a lifelong condition even though he is currently in remission.
·He said he desires to be granted an opportunity to be a father to his son and prove he is rehabilitated.
·He expressed a view he does not wish to commit any further offences or use alcohol again.
[104]Ibid, [5.4]-[5.8].
In his report, Dr Palk stated that his assessments of the Applicant using sex offending violent scales - Sexual Offender Risk Appraisal Guide (SORAG) and Sexual Violence Risk - 20 (SVR-20) indicate the Applicant’s future risk is in the ‘low range’.[105] He stated:
The nature of the offences and the circumstances of his offending indicate his offending was opportunistic and situational. The key attributing factors for the current offences are directly related to [the Applicant’s] impulsivity; poor behavioural controls; sexual gratification desires; alcohol misuse and opportunities to access young vulnerable females. [106]
[The Applicant’s] risk of reoffending is currently low considering his personality and overall lifestyle, remorse, and attitudes to work, his desire to remain in Australia and the steps he has taken towards rehabilitation. [107]
…
He accepts his offending was serious and regrets the offending and is determined to not re-offend. He appears genuinely remorseful and is committed to not re-offending and living a pro-social life. [The Applicant] has been assessed as being a low risk of re- offending, particularly if he abstains from alcohol and continues to cooperate with alcohol recovery programs.[108]
Mental health
[105]Ibid, [6.4].
[106]Ibid, [6.10].
[107]Ibid, [6.11].
[108]Ibid, [9.6].
The Applicant’s evidence is that he ‘would like to continue psychological counselling to assist [him] recovery and steer [him] in the right direction.[109]
Relationship with son
[109]Applicant’s Statutory Declaration, [30].
In his statement dated 21 March 2022, the Applicant wrote that prior to his incarceration, he shared full time parenting responsibilities of EAM with MH, and that he and EAM share an extremely close relationship. He regrets that because of his actions he has missed several of his son’s life milestones and that the prolonged separation has adversely impacted their relationship.[110] Reflecting on the loss of his own father at a young age, the Applicant wishes to continue being involved in EAM’s life. The Applicant claims that if his visa is not reinstated, it will have a ‘detrimental effect’ on his son who will be without a father figure and ‘experience dramatic emotional harm.’[111]
[110]Exhibit R1, GD, G3, 26.
[111]Ibid.
The Applicant told the Tribunal that he has received letters in gaol asking if he can provide child support for EAM. He said that he intends to provide financially for his son ‘via the proper channels.’[112]
Parole orders
[112] Transcript of proceedings. 22 November 2023, 37.
The Applicant is subject to Parole Orders made by the PBQ on 26 October 2022 which he must comply with as conditions of his release on parole. These Orders remain in force until 5 July 2025 unless otherwise determined by the PBQ and include that the Applicant:
·must report and receive visits as directed by an authorised corrective service officer’s lawful instructions
·must reside at a residence approved by the PBQ or an authorised corrective service officer
·must not leave Queensland unless permitted to do so by a PBQ or an authorised corrective service officer
·must notify the Chief Executive or an authorised corrective service officer within 48 hours of any change in his address or employment during the parole period
·if released from the custody of the Australian Border Force in a State of Australia other than Queensland he is approved o remain in that State for a period of time not longer than the maximum of time that still enables him to comply with the requirement to report in person to Queensland Community Corrections within 48 hours of his release
·must not depart of be absence from his place of residence between the hours of 9pm and 5am without the prior approval of a corrective services officer for the first three months
·must attend courses, programs and meetings and counselling at such places and times as directed by an authorised corrective service officer, in particular to address sexual offending
·must not be in the company of a person under the age of 16 years unless accompanied by an adult as approved by an authorised corrective service officer and must not engage in written or electronic communication with any person under the age of 16, other than with those approved by an authorised corrective service officer
·must report any personal or intimate relationships with anyone who has the care, custody or guardianship of a child to an authorised corrective service officer at the commencement of the relationship
·must not in any way, directly or indirectly, contact or communicate with the victim without the prior approval of an authorised corrective service officer.
The Applicant’s evidence is that he did not have contact with his son, EAM, while he was in prison or immigration detention.[113] Although he is not able to contact EAM, he regularly receives information regarding his son’s welfare from family and friends.[114] During cross-examination, the Applicant agreed that the effect of his parole conditions is that he cannot contact or be in the company of his son other than with a person approved by Corrective Services. He said that he must make an application and obtain approval to see his son. He has not yet made such an application.[115]
Family in Australia
[113] Transcript of proceedings, 22 November 2023, 32.
[114]Exhibit R1, GD, G3, 26
[115]Transcript of proceedings, 22 November 2023, 32.
The Applicant has an aunt in Australia, TM, who is an Australian citizen and is married with two children and lives in Brisbane. She is a nurse at a children’s hospital. The Applicant has a good relationship with her children who are aged approximately 16 and five years.[116] TM visited the Applicant when he was in gaol approximately four or five times per year, and they would speak on the phone every month.[117]
[116] Applicant Statutory Declaration, [23]; Transcript of proceedings, 22 November 2023, 34.
[117] Transcript of proceedings, 22 November 2023, 34.
During re-examination, the Applicant agreed that his parole conditions prohibit him from contacting or being in the company of his aunt’s children, and if he wishes to communicate with them he will have to write to the authorised corrective services office and obtain approval.[118]
BVR conditions
[118]Ibid, 37.
The BVR has a number of conditions with which the Applicant must comply. These include:
8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
8401 – Report as Directed
The holder must report:
(a) daily between 09:30 and 14:00
(b) by telephone to (02) 8862 6914
8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.
8550 - Notify changes in personal details
The holder must notify the Minister of any changes in the holder’s personal details, including a change to any of the following contact information:
(a) the holder’s name;
(b) an address of the holder;
(c) a phone number of the holder;
(d) an email address of the holder;
(e) an online profile used by the holder;
(f) a user name of the holder;
not less than 2 working days before the change is to occur.
8551 – Obtain approval for certain occupations
(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations, or occupations of a similar kind:
(a) occupations that involve the use of, or access to, chemicals of security concern;
(b) occupations in the aviation or maritime industries;
(c) occupations at facilities that handle security-sensitive biological agents
8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.
8612 – Notify details of persons who reside with the holder
The holder:
(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder’s residential address; and
(b) must notify Immigration of any change in the persons who ordinarily reside with the holder at the holder’s residential address within 2 working days after the change occurs.
8613 – Obtain approval before commencing activities with vulnerable persons
(1) The holder must obtain the Minister’s approval before commencing to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.
8614 – Notify travel
(1) The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.
(2) If the holder does not comply with subclause (1), the holder must notify Immigration of the travel within 2 days after departing on the travel.
8620 – Abide by specified curfew
(1) The holder must, between 10pm on one day and 6am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2) If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8 hours apart.
(3) in this clause:
Notified address for a holder for a particular day or days means any of the following:
(a) the address notified by the holder under condition 8513 or 8550;
(b) an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;
(c) if, for the purposes of this paragraph, the holder notified Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be) – that address.
8621 – Monitoring device
(1) The holder must wear a monitoring device at all times.
(2) The holder must allow an authorised officer to fit, install, repair or remove the following:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(3) The holder must take any steps specified in writing by the Minister and any other reasonable steps, to ensure that the following remain in good working order:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(4) if the holder becomes aware that either of the following is not in good working order;
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device;
The holder must notify an authorised officer of that as soon as practicable.
8622 – Must not perform work with minors
(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.
8623 – Must not approach school or childcare centre
If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.
8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.
On 21 November 2003, the Applicant signed and returned to the Department a form in which he stated that he understands and acknowledges that if he fails to comply with any of the conditions, his visa may be ceased or cancelled.[119] He also confirmed that he understands and acknowledges that if he fails to comply with the following conditions, he may have committed an offence under section 76B, section 76C or section 76D of the Migration Act 1958 (Cth):
[119] Transcript of proceedings, 22 November 2023, 8.
·8401
·8513
·8542
·8543
·8550
·8552
·8561
·8612
·8614
·8615
·8616
·8620
·8621
Contribution to Australian society
In his statement dated 21 March 2022, the Applicant wrote that his connection to Australia is deeply ingrained, and since residing here he has grown accustomed to Australia’s culture. He claims he has established a ‘successful’ life, including attaining tertiary qualifications and the establishment of a small business.[120]
[120]Exhibit R1, GD, G4, 122.
Between 2012 and 2018, the Applicant was employed in various roles including as a cleaner, process worker, labourer and cable technician. He claims that he made various other positive contributions to the Australian community including volunteering his services teaching soccer to men and boys at the Mount Gravatt Soccer Club and playing community football for the Brisbane Warriors.[121] He states that he became ‘devoted’ to the promotion of African culture and supported newly arrived African refugees navigating their new lives in Australia. He says he has made further contributions by mentoring African inmates during his incarceration and counselling them about minimising their recidivist risk.[122]
Previous warning
[121]Ibid, GD, G4, 123.
[122]Ibid, GD, G3, 25.

On 30 August 2011, the Applicant was notified by the Department that his visa may be cancelled on character grounds. In a letter dated 2 May 2012, the Department advised the Applicant that a delegate had decided not to cancel his visa and gave him a formal warning as follows:[123]
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[123]Ibid, GD, G4, 171.
The Applicant signed an acknowledgement of this warning on 25 May 2012.[124]
Future plans
[124]Ibid, GD, G4,174.
The Applicant told the Tribunal that that he plans to return to Brisbane where he has his ‘support network’, specifically his aunt, her husband and their children, and his friends. He will be assisted by RSS to find rental accommodation.[125]
[125] Transcript of proceedings, 22 November 2023, 33.
The Applicant’s evidence is that following his release into the community, he intends to ‘abide by all the rules of [his] parole conditions, be a positive member of the community and do a positive routine’ which he did in the immigration detention centre.[126] This includes thinking about what he should do to make himself a better person and using the knowledge he has learned from the courses he has completed to improve his communication and boost his self-esteem. He told the Tribunal that he can now identify his ‘triggers’ and he knows he needs to seek support from a counsellor, a professional, or a family member when they appear. He has learned to be ‘open and honest’ about what is happening and ‘to accept and to change.’[127] He continued:[128]
For me to move on I need to accept that I’ve done a lot of bad things in my life. I need to own my mistakes, which I’ve done. Do positive things to amend all of this, what I’ve done. And the only way I can do this is for me to take responsibility, accept me to change, and try to be a positive, law-abiding citizen in the community.
[126]Ibid, 15.
[127]Ibid.
[128]Ibid.
The Applicant told the Tribunal that he has undertaken a lot of commercial courses to ‘embark on foreign exchange trading.’ He has done this before, but now he wishes to do it on ‘a bigger scale’. He plans to register as a stockbroker by completing the required test, and he intends to trade in cryptocurrency, stocks, futures and options.[129]
[129]Ibid, 16.
The Applicant’s evidence is that he has qualifications in fitness training, and he plans to establish an app which will teach people how to lose weight, boost their self-esteem, set long and short-term goals, improve their communication, identify their strengths and weaknesses, and set ‘healthy boundaries.’[130] He told the Tribunal that he has planned to get brochures printed and he will soon be ready to launch his business.[131]
[130]Ibid.
[131]Ibid, 35-36.
The Applicant told the Tribunal:[132]
… with all the courses and all the rehabilitation I’ve done I would like to use it to show the community that people can change, and to be able to have a positive relationship with my son, to show him that he should be a law-abiding citizen, be able to provide for him financially, emotionally if I’m allowed to. To be able to tell him the story of all the wrongdoing I’ve done, and what I did to amend (sic) into the way I am. Tell him that there’s a consequence for every action that you do. Be aware how all your thoughts and behaviour affects your life.
Fear of harm on return to Zimbabwe
[132]Ibid, 17.
In his Statutory Declaration dated 10 October 2023, the Applicant wrote:[133]
I should not be deported to Zimbabwe because I would be arrested and persecuted upon returning. I do not want to suffer the same fate as my father.[134]
…
I cannot return to Zimbabwe now. I am in danger of persecution and abduction in Zimbabwe. I would be arrested if I returned to Zimbabwe. A letter from the MDC Branch Secretary from 2022 corroborates this.[135]
[133]Applicant’s Statutory Declaration, [62].
[134]Ibid.
[135]Ibid, [27].
The Applicant told the Tribunal that he cannot return to Zimbabwe because:[136]
… I will lose my life … I’ll lose my liberty, torture, inhuman treatment. And I fear the worst. I will be dead.
[136] Transcript of proceedings, 22 November 2023, 16.
He said that people know his father for what he did, and he is associated with his father and ‘all the horrible things he’s done.’ As soon as he returns to Zimbabwe, people will know he has done so, and they will be aware that his family were active members of the Zanu-PF.[137]
Witness evidence
[137]Ibid, 17.
TM, Applicant’s aunt
TM gave evidence at the hearing by telephone and provided a statement dated 16 March 2023.[138] She told the Tribunal that the Applicant is the son of her aunt (the sister of her father).[139] She has known the Applicant since his birth, and they would visit him and his family when they lived in Zimbabwe.[140] She migrated to Australia the same year as the Applicant and she lived in Alice Springs and later moved to Brisbane. She was ‘shocked’ when she heard about the crimes he committed.[141] She confirmed that she visited the Applicant when he was in gaol and they spoke on the phone. She believes he is remorseful for his crimes,[142] and that he will ‘turn his life around’ and ‘just live in the normal community’.[143]
[138]Exhibit R1, GD G4, 159.
[139] Transcript of proceedings, 22 November 2023, 44.
[140]Ibid.
[141]Ibid, 45.
[142]Ibid, 45-46, 47.
[143]Ibid, 46.
TM confirmed that she has two children, AM aged 16, and JM aged six years.[144] She told the Tribunal that the Applicant has not been in contact with her children. She confirmed that she can provide emotional support to the Applicant and some financial assistance if he needs it.[145]
[144]Ibid.
[145]Ibid, 47.
BN, Applicant’s friend
BN gave evidence at the hearing by telephone and provided a statement dated 11 October 2023.[146] He told the Tribunal that he met the Applicant when he arrived in Australia as an international student in October 2007. He stayed with the Applicant while he was looking for his own place to live.[147] He is aware of the Applicant’s most recent offending, and he visited him every two or three months when he was in gaol.[148] BN relocated to Victoria two years ago and since then he has not seen the Applicant. He said that when the Applicant returns to Queensland he will ‘definitely’ visit him there.[149]
[146]Statements in Support of the Applicant, 11 October 2023.
[147] Transcript of proceedings, 22 November 2023, 49.
[148]Ibid, 50.
[149]Ibid, 51.
BN said that believes there is ‘zero likelihood’ that the Applicant will reoffend. The Applicant has told him he is remorseful for what he has done, he regrets everything that has happened, and is looking forward to being back in the community and seeing his son.[150] He does not believe the Applicant poses risk to the Australian community.[151]
[150]Ibid, 50.
[151]Ibid.
TU, Applicant’s friend
TU gave evidence at the hearing by telephone and provided a statement dated 9 October 2023.[152] He told the Tribunal that he and the Applicant met in 2004 when they studied at the same college in Zimbabwe. When he came to Australia, they re-connected when they were both studying at Griffith University.[153] They also worked together at an abattoir. He said that the Applicant is a ‘very hard worker’ and he often worked two jobs at the same time.[154]
[152]Statements in Support of the Applicant, 9 October 2023.
[153]Transcript of proceedings, 22 November 2023, 54.
[154]Ibid, 50.
TU told the Tribunal that he speaks to the Applicant once or twice a week. He is aware of the Applicant’s offending against the victim and said the Applicant has told him how ‘regretful’ he is and about the steps he has taken to rehabilitate.[155] TU said that he believes that the Applicant has ‘already rehabilitated’ and he ‘has been working very hard to become a different man’.[156] He told the Tribunal that he can offer support to the Applicant including financial assistance to buy food and pay rent. He also would be willing to provide a character reference for the Applicant to help him to get back into the workforce.[157]
[155]Ibid, 54.
[156]Ibid, 55.
[157]Ibid, 56.
TK, Applicant’s friend
TK gave evidence at the hearing by telephone and provided a statement dated 9 October 2023.[158] He and the Applicant were neighbours when they lived in Zimbabwe, and they ‘grew up’ together and are ‘like brothers’.[159] He came to Australia in June 2006 to study at Griffith University and the Applicant picked him up when he arrived at the airport. He stayed with the Applicant when he first arrived and he helped him find accommodation.[160] TK told the Tribunal that the Applicant has always ‘worked hard’ and supported his family including paying for his sister’s education.[161] He and the Applicant have supported each other financially and emotionally and maintained a ‘good relationship.’[162] When the Applicant was in gaol, he would visit him every month,[163] and they would speak on the phone in between visits. TK provided the Applicant with financial support when he was in gaol, including so that he could phone him.[164]
[158]Statements in Support of the Applicant, 9 October 2023.
[159] Transcript of proceedings, 22 November 2023, 58, 59.
[160]Ibid, 58.
[161]Ibid, 59.
[162]Ibid.
[163]Ibid, 62.
[164]Ibid, 63.
TK told the Tribunal that when he learned of the Applicant’s offending against the victim, he went to visit him ‘to get his full account of what happened’ because he has ‘always trusted his word’. The Applicant told him that he has ‘always maintained’ that ‘he was not responsible for what he was being accused of.’[165] In his opinion, the Applicant is a ‘loving person’ and if he does anything wrong ‘he always takes ownership’ and he ‘would be remorseful’.[166] He has observed that the Applicant has ‘worked really, really hard to maintain his stature’ and ‘worked really, really hard to make sure that … he stays strong and true to himself in terms of his character.’[167] He believes that the Applicant will reintegrate into the community as he is a ‘hard-working character’ and a ‘responsible person.’[168] TK said that he would be able to provide the Applicant with accommodation if he required it, and any other support he needs to transition back into the community. He said that he would gladly support the Applicant with ‘anything that will help to make his transition seamless and easy or smooth as possible.’[169]
[165]Ibid, 59, 61-62.
[166]Ibid, 60.
[167]Ibid.
[168]Ibid, 61.
[169]Ibid.
KN, Applicant’s friend
KN gave evidence at the hearing by telephone and provided a statement dated 11 October 2023.[170] He met the Applicant in 2005 when they were studying at Griffith University.[171] He worked with the Applicant when he took him ‘under his wing’ and taught him telecommunications installation.[172] He observed that the Applicant has ‘a very, very good work ethic’ and he believes that he has a ‘very, very high change of reintegrating into the Australian community’. When the Applicant was in gaol he visited him almost every month or whenever he could,[173] and they also spoke over the phone regularly.[174] While the Applicant was in immigration detention they spoke on the phone ‘every single day’ and he bought him the cell phone that the Applicant has been using.[175] KN said he has always been there for the Applicant and he is willing to offer whatever support he can to help him to reintegrate into the community.[176]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[170]Statements in Support of the Applicant, 11 October 2023.
[171] Transcript of proceedings, 22 November 2023, 64.
[172]Ibid, 65.
[173]Ibid.
[174]Ibid, 66.
[175]Ibid.
[176]Ibid, 65.
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 24 January 2020 recording his criminal convictions and sentences. It relevantly records that on 17 December 2019, the Applicant was convicted in the Brisbane District Court for one count of Rape (domestic violence offence) and three counts of Indecent Treatment of children under 16 Lineal Descendant/ Guardian/Carer. In respect of the rape conviction, the Applicant was sentenced to seven years’ imprisonment, and for the indecent dealing offences he was sentenced to two years’ imprisonment on each count, to be served concurrently.[177] 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 16 January 2020 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of Queensland.
[177]Exhibit R1, GD, G4, 36.
The Tribunal is satisfied that the Applicant does not satisfy the character test because he has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act, and accordingly it finds that section 501CA(4)(b)(i) of the Act cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2.Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
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:[178]
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.
[178] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
The Full Court recently described the weighing or balancing process that the Direction requires in CRNL and Minister for Immigration, Citizenship and Multicultural Affairs:[179]
It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some considerations set out in the Direction, where relevant, may weight in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[179][2023] FCAFC 138 at [35]
The Full Court found that the Tribunal is also required to expressly make an evaluation or balancing of the competing reasons in any matter so as to justify the ultimate conclusion reached as to whether or not there is “another reason” to revoke the Mandatory Visa Cancellation Decision.[180]
[180][37] and [44]
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’.[181] In Demir v Minister for Immigration, Citizenship and Multicultural Affairs Kennett J described the weighing process:[182]
The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered.
PRIMARY CONSIDERATIONS
[181](2016) 241 FCR 461, [57].
[182][2023] FCA 870 at [21],
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.
1)Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1)(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.

Having regard to paragraph 8.3(3) of the Direction, the Tribunal finds that the Applicant has strong, long-standing and meaningful relationships with persons who reside in Australia, specifically his son, EAM, the victim, his aunt and her husband and their children, and his friends who gave supporting evidence. The evidence is that these individuals are Australian citizens or permanent residents.
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. These persons are the Applicant’s son, the victim, his aunt and her husband and their children, AM and JM.
The Applicant has a 10-year-old son, EAM who is an Australian citizen and lives with his mother and half-sister (the victim). Having regard to paragraphs 8.3(1) and (2) of the Direction, the Tribunal notes that the parole orders prevent the Applicant from having contact with EAM, as a person under the age of 16 years, unless accompanied by an approved adult, and he must not engage with him in written or electronic communication without the approval of an authorised corrective services officer. Further, condition 8624 of the BVR prohibits the Applicant from making contact, or attempting to make contact, with EAM as he is a member of the victim’s family.
The Tribunal has considered the impact of a decision not to revoke the Mandatory Visa Cancellation Decision on EAM, and finds that as the Applicant will remain residing in the community, whether or not the Mandatory Visa Cancellation Decision is revoked. Further, as the parole orders do not permit him from having contact with EAM without approval, and only if accompanied by an approved adult, the Applicant may only have contact with his son if these conditions are met until his parole expires in July 2025. If the Mandatory Visa Cancellation Decision is not revoked, the Applicant will remain on the BVR and subject to condition 8624 which prohibits him from making contact, or attempting to make contact, with EAM as he is a member of the victim’s family. It follows that the impact on EAM will be greater if the Mandatory Visa Cancellation Decision is not revoked as the BVR conditions prohibit any contact by the Applicant with his son.
In relation to the Applicant’s stepdaughter (the victim), both the parole orders and condition 8624 of the BVR prohibit the Applicant from making contact or attempting to make contact with her. It follows that the impact on the victim is the same whether or not the Mandatory Visa Cancellation Decision is revoked for the duration of his parole. However, at the expiry of his parole in July 2025, the Applicant will only be prevented from contacting the victim if he remains subject to the conditions of the BVR. If the Mandatory Visa Cancellation Decision is revoked, the Applicant’s Protection visa will be reinstated, and he will not be restricted from contacting the victim once his parole expires.
The Applicant’s aunt, TM, her husband and their children, AM and JM, are immediate family members who are Australian citizens. TM provided a statement of support for the Applicant and gave oral evidence at the hearing. Whereas she did not give evidence of how she and her family would be impacted by a decision not to revoke the Mandatory Visa Cancellation Decision, the Tribunal is satisfied that TM and her husband will be able to maintain their relationship with the Applicant regardless of whether the Mandatory Visa Cancellation Decision is revoked or not as he will be residing in Brisbane and not restricted from contacting them. However, the Applicant’s parole orders prohibit him from contacting AM and JM unless approval is given as they are aged under 16 years. The BVR conditions do not prevent the Applicant contacting AM or JM. It follows that the impact on AM and JM of a decision not to revoke the Mandatory Visa Cancellation Decision will be different during the duration of the parole period and following its expiry. Once the Applicant is no longer subject to the parole orders, he will be permitted to have unrestricted contact with AM and JM, whether or not his visa is reinstated or he remains on the BVR.
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 July 2005 being a period 18 and a half years. He arrived here as an adult aged 19 years and was convicted of his first offence in Australia in 2011. Consistently with the guidance in the Direction, the Tribunal has given limited weight to the period of time the Applicant has lived in Australia, for reason that he did not reside here during his formative years, and he began offending relatively soon after his arrival.
Relevantly to paragraph 8.3(4)(a)(ii) of the Direction, the evidence is that the Applicant has a good history of employment in Australia and has made a positive contribution to the economy through his work as a cleaner, process worker, labourer and cable technician. He also has established many strong and long-standing friendships, including with the individuals who provided evidence in support of his application for revocation of the Mandatory Visa Cancellation Decision.
For the stated reasons and having applied the guidance in paragraph 8.3 of the Direction, the Tribunal finds that Primary Consideration 3, on balance, weighs 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). There are four potentially affected children: EAM (aged 10), the victim (aged 16), AM (aged 16) and JM (aged six).
The Tribunal has had regard to the factors in paragraph 8.4(4)(a) and finds that prior to his incarceration, the Applicant had a meaningful relationship with the four children, particularly his son, EAM, and the victim, with whom he resided in the home they shared with MH. However, he has not had contact with any of the children, including EAM, since he was taken into custody in May 2018, being a period of more than five and a half years.
Having regard to the factors in paragraph 8.4(4)(b), the Tribunal finds that there are only two years until the victim and AM reach adulthood, and there are eight and 12 years respectively until EAM and JM turn 18. Accordingly, there are a number of years during which the Applicant may be able to play a positive parental role for EAM.
Also relevant to the factors in paragraph 8.4(4)(b) are the parole orders and condition 8624 of the BVR which prevent the Applicant from contacting the victim. Once the parole orders expire, the Applicant will be permitted to contact the victim if the Mandatory Visa Cancellation Decision is revoked and his visa is reinstated, but he will not be permitted to do so if the Mandatory Visa Cancellation Decision is not revoked and he remains on the BVR and subject to condition 8624. The Tribunal finds that as there is a high likelihood that the victim would have suffered significant emotional distress and psychological harm as a consequence of the Applicant’s offending, it is in her best interests for the Mandatory Visa Cancellation Decision not to be revoked, and for the Applicant to remain on the BVR and subject to condition 8624.
In relation to EAM, AM and JM, the Applicant may contact them consistently with the parole orders if the requisite approval is obtained until July 2025 when his parole expires. Following the expiry of his parole, the Applicant will be able to contact EAM, AM and JM without restriction if the Mandatory Visa Cancellation Decision is revoked and his visa is reinstated. However, if the Mandatory Visa Cancellation Decision is not revoked, he will remain on the BVR and subject to condition 8624 which will prohibit him from contacting EAM as he is a family member of the victim. The Tribunal finds that it is in the best interests of EAM, AM and JM and for them to be able to re-establish a relationship with the Applicant, and this will be permitted following the expiry of the Applicant’s parole, if the Mandatory Visa Cancellation Decision is revoked.
In relation to the factors in paragraph 8.4(4)(c), although the Applicant’s offending has resulted in his physical absence from the lives of EAM, AM and TM, as 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. In relation to the victim, the Applicant’s offending would have had a direct and devastating impact on her. Having found that the risk of the Applicant engaging in similar criminal or other serious conduct in the future is low to moderate, the Tribunal finds that there is the potential for the children to be negatively impacted if the Applicant engages in inappropriate or illegal behaviour in the future.
In relation to the factors in paragraph 8.3(4)(e) of the Direction, the evidence is that EAM and the victim live with their mother, and AM and JM live with their parents, who fulfill the primary parental role in their lives. Having regard to paragraph 8.3(4)(f) there is no evidence before the Tribunal of the views of the children.
In relation to the factors in paragraph 8.4(4)(g) and paragraph 8.4(4)(h), the evidence is that the victim has been subject to family violence perpetrated by the Applicant, sexually abused by him and likely suffered psychological harm arising from his conduct. There is no evidence that EAM, AM or JM have been subjected to any such harm by the Applicant’s conduct.
Having regard to the evidence before it, the Tribunal finds that it is in the best interests of the victim for the Mandatory Visa Cancellation decision not to be revoked as the Applicant will then remain on the BVR and will be prohibited by condition 8624 from contacting her, including following the expiry of his parole.
In relation to EAM, the Tribunal finds that it is in his best interests for the Mandatory Visa Cancellation Decision to be revoked as the Applicant will have his visa reinstated and following the expiry of his parole will be able to contact his son. If the Mandatory Visa Cancellation Decision is not revoked, the Applicant will remain on the BVR and will be prohibited by condition 8624 from contacting his son as a family member of the victim, including following the expiry of his parole.
The Tribunal finds that it is in the best interests of AM and JM to be able to re-establish their relationship with the Applicant which, following the expiry of his parole, will be able to occur, regardless of whether the Mandatory Visa Cancellation Decision is revoked.
For the stated reasons and having applied the guidance in paragraph 8.4 of the Direction, the Tribunal finds that Primary Consideration 4, on balance, weighs in favour of the 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)…
(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.’[195] 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.[196]
[195]FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J [77].
[196]Minister for Immigration v HSRN [2023] FCAFC 68.
The Full Court recently considered the previous iteration of this paragraph in Direction 90 in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN (‘HSRN’).[197] The Full Court observed that Direction 90 is ‘clearer in material respects’ than the previous iteration found in Direction 65 which had been the subject of consideration by the Full Court in FYBR v Minister for Home Affairs (‘FYBR’).[198] The Full Court in HSRN observed that Direction 90 was consistent with the analysis in the majority judgment in FYBR. It stated:[199]
First, it makes it express in paras 8.4(1) and (2) that the expectation of the community is not that failure of the character test should result in the non-citizen being denied a visa or their visa being cancelled – that expectation is confined to the particularly egregious types of cases set out in para 8.4(2). The character test as expressed in ss 501(6) and(7) of the Act can be failed on lesser bases. Secondly, para 8.4(4) expressly provides that “decision-makers should proceed on the basis of the Government’s views” as articulated in the Direction, “without independently assessing the community’s expectations in the particular case”.
[197][2023] FCAFC 68.
[198]Ibid, [32]; FYBR vMinister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454.
[199]Ibid, [35].
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 sexual offences against a minor aged child in his care. 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 18 and a half 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 a 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’):[200]
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.
[200](2018) 74 AAR 545 [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[201] 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’.[202] 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’.[203]
[201][2021] FCA 775 [22].
[202] Ibid, [23].
[203] 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:
2)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.
3)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.
4)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).
Paragraph 9.1.1 of the Direction relevantly provides as follows:
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will
be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
Section 197C provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
…
Section 197C(3) applies to the Applicant’s circumstances as he is a person with respect to whom a protection finding has been made in relation to Zimbabwe. The Applicant was granted the Protection visa on 21 October 2009. An officer of the Department reviewed this finding on 29 May 2023 and found that it was a ‘protection finding’ for the purposes of section 197C(5)(a) of the Act.[204] None of the circumstances in section 197(3)(c)(i), (ii), or (iii) apply to the Applicant.
[204]Exhibit R1, GD, G4, 177-178.
Paragraph 9.1.1(2) of the Direction makes clear that section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made. In the Applicant’s circumstances, he cannot be removed to Zimbabwe in breach of Australia’s non-refoulement obligations, even if an adverse visa decision under section 501CA is made, and he can only be removed to a third country.
On 20 November 2023, the Applicant was released from immigration detention into the community as a consequence of the High Court decision in NZYQ. On 21 November 2023, the Applicant was granted the BVR. The Respondent concedes that there is no real prospect of the Applicant’s removal to a third country being practicable in the reasonably foreseeable future.[205]
[205] Respondent’s Supplementary Submissions dated 20 November 2023, [2,2].
The Tribunal finds that a legal consequence of a decision to revoke the Mandatory Visa Cancellation Decision is that the Applicant’s visa status will change to that of the holder of the Protection visa he held prior to its cancellation. It follows that if the Mandatory Visa Cancellation Decision is revoked and the Applicant’s visa is reinstated, he will become the holder of a permanent Protection visa. The only condition that may be attached to the Protection visa is condition 8559 - Travel restriction.[206] If the Tribunal affirms the Mandatory Visa Cancellation Decision, the legal consequence of its decision is that the Applicant will remain in the community on the BVR, a temporary non-substantive visa. In comparison to the Protection visa, the BVR is subject to the strict conditions which are detailed in paragraph [92] above.
[206] The holder must not enter the country by reference to which:
(a) the holder; or
(b) for a member of the family unit of another holder – the other holder;
was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing.
The Tribunal finds that Other consideration a) weighs in favour of the exercise of the discretion to revoke 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;[207]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[207] 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].
The Applicant cannot lawfully be removed to Zimbabwe as he is subject to a protection finding. The evidence supports a finding that the Applicant is unlikely to request voluntary removal to Zimbabwe as he claims he fears he will lose his life or liberty and be subjected to torture and inhuman treatment.
On the basis of the evidence before it, the Tribunal finds that Other consideration b) should be given neutral weight.
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 of a decision to revoke the Mandatory Visa Cancellation Decision. The Tribunal has therefore given Other consideration c) 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 Zimbabwe. Accordingly, the Tribunal has given Other consideration d) 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 sexual offences against a minor aged victim who is his stepdaughter. The low to moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision because the Applicant’s sexual offences were acts of family violence against his stepdaughter, who was under his care and protection, which occurred over the period from 30 April 2018 and 5 May 2018.
Primary Consideration 3 on balance weighs in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for 18 and a half years and members of his immediate members, including his son, reside in Australia and will be impacted if his Protection visa is not reinstated and he remains on the BVR following the expiry of his parole conditions in July 2025.
Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s son, AM and JM for him to have his Protection visa re-instated so that he can re-establish his relationship with these children following the expiry of his parole conditions.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s very 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 is that the Applicant will remain on the BVR subject to strict conditions, and this weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision is affirmed.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

..........….............….....[SGD]......................................
Associate
Dated: 19 January 2024

Date(s) of hearing:

22 and 23 November 2023

Solicitors for the Applicant:

P. Ramirez, Brent Legal

Counsel for the Respondent:

A. Hall, 12 Wentworth Selborne Chambers

[2023] AATA 4493

1 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date(s) of hearing:	22 and 23 November 2023
Solicitors for the Applicant:	P. Ramirez, Brent Legal
Counsel for the Respondent:	A. Hall, 12 Wentworth Selborne Chambers