KLJM and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 87
•5 February 2025
KLJM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 87 (5 February 2025)
Applicant/s: KLJM
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9635
Tribunal:Deputy President S Roushan
Place: Sydney
Date:5 February 2025
Decision:The Tribunal affirms the decision under review.
................[Sgnd]............................................
Deputy President S Roushan
Catchwords
MIGRATION – decision of delegate of Minister to refuse to grant the Applicant a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BB) visa – character test not passed –Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – impact on Australian business interests – applicant is a Subclass 070 (Bridging (Removal Pending)) visa holder – removal pathway non-citizen – decision affirmed
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1)
Migration Act 1958 (Cth) ss 5, 36, 76AAA, 109, 189, 196, 197C, 197D, 199B, 199C, 199D, 199E, 499, 500, 501, 501CA, 501E
Migration Amendment Act2024 (Cth)
Migration Amendment (Removal and Other Measures) Act2024 (Cth)
Migration Regulations 1994 (Cth) reg 2.12AA, sch 2 pt 070 cl 070.511Cases
DJYG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2553
FYBR v Minister for Home Affairs & Anor [201] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
Howells v MIMIA (2004) 139 FCR 580
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024)
Statement of Reasons
INTRODUCTION
This is an application for a review of a decision of a delegate of the Respondent (the Minister) dated 14 November 2024 to refuse to grant the applicant a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BB) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act).
The issues before the Tribunal are whether the applicant passes the character test as defined in s 501(6) of the Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
BACKGROUND
Immigration history
The applicant was born in Hyderabad, Pakistan in 1975. He is a Sunni Muslim and of Mohajir (or Muhajir) ethnicity.[1] He married his wife, AP, on 1 January 2004. Their two daughters, TN and AN, were born in Pakistan on 6 October 2004 and 9 September 2006, respectively.[2]
[1] Statutory Declaration provided by the applicant in support of his Protection visa application as cited in the Record of decision of whether to cancel under s 109 of the Migration Act, dated 16 November 2016, G documents, G31, Attachment W.
[2] Ibid.
On 5 December 2007, the applicant arrived in Australia on a Student visa.[3] His wife and two daughters arrived on 18 February 2010.[4] The applicant’s Student visa was subsequently cancelled. His wife and his daughters’ visas were also consequentially cancelled.[5]
[3] Ibid.
[4] Response to Notice of Intention to Consider Refusal dated 9 October 2024, G20, Attachment N.
[5] G31.
On 17 September 2012, the applicant applied for a Protection visa. That application was refused by a delegate of the Minister, and, on 11 December 2013, the former Refugee Review Tribunal (RRT) set aside the delegate’s decision to refuse the applicant a Protection visa on the basis that the applicant satisfied s 36(2)(aa) of the Act.[6] The delegate who subsequently considered the applicant’s Protection visa application, made a ‘protection finding’, as defined under s 197C(3) of the Act, in relation to the applicant with respect to Pakistan.[7]
[6] Statement of reasons for decision under subsection 501(2) of the Migration Act 1958, G5.
[7] Ibid.
On 14 March 2015, the applicant’s son, MN, was born in Australia.[8] He was granted Australian citizenship on 1 June 2015.[9] On 23 June 2021, the applicant’s wife and his daughters were also granted Australian citizenship.[10]
[8] G17(a).
[9] G18(b).
[10] G18(a), (c) and (d).
On 16 November 2016, the applicant’s Protection visa was cancelled by a delegate of the Minister under s 109 of the Act on the basis that the applicant had provided bogus Pakistani police documents within the meaning of section 5(1) of the Act, which undermined the credibility of his claims for protection. That decision was subsequently affirmed by the then Administrative Appeals Tribunal on 28 November 2017.[11]
[11] Statement of reasons for decision under subsection 501(2) of the Migration Act 1958, G5.
Applicant’s conduct and offending
The applicant obtained his taxicab driver authority in December 2010.[12] He was issued with penalty infringement notices for speeding offences that occurred on 25 August 2012 and 9 September 2012 while driving a taxicab. He was issued with a further penalty infringement notice for driving through a red light on 14 December 2012.[13] The applicant completed false statutory declarations in relation to each of the three offences, denying involvement and claiming that his wife and another person were driving instead.[14]
[12] Exhibit R1, JTB pp 617-627.
[13] Ibid.
[14] Ibid.
On 8 November 2013, the NSW Roads and Maritime Services decided to cancel the applicant’s license and the NSW Civil and Administrative Tribunal (NCAT) affirmed that decision on 19 February 2014. NCAT noted in its reasons for decision that the applicant had ‘admitted to swearing three false statutory declarations, nominating a driver other than himself in relation to three traffic offences.’[15]
[15] Ibid.
On 13 June 2017, the applicant was convicted of the offence of sexual intercourse without consent in the District Court of New South Wales and sentenced to a period of imprisonment of nine years with a non-parole period of six years and four months.
The sentencing judge’s summary of the agreed facts prepared for the sentence was set out in the judgement of the New South Wales Court of Criminal Appeal, dismissing the applicant’s appeal against the sentence imposed by the District Court.[16] According to the summary, on the evening of 17 October 2015, the victim, heavily intoxicated after consuming significant amounts of alcohol throughout the day, encountered the applicant, an Uber driver. Believing the applicant’s car to be a taxi, she provided her home address and fell asleep during the journey. At approximately 1:00 AM, the applicant stopped at a service station to purchase condoms before continuing to drive. He then parked on a dark side street and encouraged the victim to move to the back seat, assisting her in doing so. The victim, disoriented and drowsy, awoke to find the applicant on top of her, engaging in non-consensual sexual intercourse. Despite her attempts to resist, she was unable to stop the assault. The applicant then stopped, returned to the driver seat, and continued driving to the victim’s home, where he woke her and indicated they had arrived. The victim subsequently disclosed the assault to a friend, who contacted the police. A medical examination and evidence collection followed, revealing bruises on the victim’s leg and high level of intoxication at the time of the offence.
[16] G7.
The applicant was charged with one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), to which he pleaded not guilty. He was found guilty following a jury trial before Her Honour Judge Payne and a jury. On 13 June 2017, the applicant was sentenced to imprisonment for nine years commencing 12 February 2017 and expiring 11 February 2026 with a non-parole period of six years and four months expiring 11 June 2023. On 12 July 2019, the Court of Criminal Appeal dismissed the applicant’s appeal against his sentence.
While in prison and immigration detention, the applicant completed a range of vocational and life skills courses. These are detailed in the applicant’s statements to the Department and the Tribunal.[17] During the period of his imprisonment, the applicant was charged with Fight or Other Physical Combat on 23 November 2022, for which he received ‘5 days in cells’.[18] I have not relied on this information in deciding the application before me, as it was not submitted that it constitutes serious conduct.
[17] G11, G12, Exhibit A1 (A26).
[18] Exhibit R2, JTB p 656.
The applicant was released from prison on parole on 11 June 2023 and was taken into immigration detention at Villawood Immigration Detention Centre. On 14 November 2024, he was granted a Subclass 070 (Bridging (Removal Pending)) visa (BVR) and released from immigration detention. On the same date, the applicant's application for a Partner visa was refused by the delegate on the basis that he has a substantial criminal record within the meaning of s501(7)(c ) and does not pass the character test.
On 25 November 2024, the applicant applied to the Tribunal for a review of the delegate’s decision.
THE HEARING AND THE EVIDENCE
The matter was heard on 22 and 23 January 2025. At the hearing, the applicant was self-represented. Ms Victoria Ginnane of Mills Oakley appeared for the Minister.
In deciding this matter, I have had regard to the following:
(a)The Joint Tender Bundle prepared by the respondent (JTB);
(b)The ‘G documents’ (pages 1-498 of the JTB) - Exhibit G1;
(c)The applicant’s bundle of documents (A1 to A27 in the JTB, pages 499-616) - Exhibit A1;
(d)The decision of the New South Wales Civil and Administrative Tribunal in …… . …… … ……… …….. …… .…….. . (pages 617 to 627 of the JTB) - Exhibit R1;
(e)Bundle of documents produced by the Minister under summons (pages 628 to 994 of the JTB) - Exhibit R2;
(f)Second bundle of documents produced by the Minister under summons - Exhibit R3;
(g)The oral evidence given by the applicant and his witnesses; and
(h)The opening and closing oral submissions made on behalf of the parties.
All documents, except for the second bundle of documents produced by the Minister under summons, are included in the Joint Tender Bundle (JTB).
The applicant’s witnesses were:
·AP
·TN
·AN
·Mr Fahad Ali
·Mr Kamal Humdani
The relevant parts of the oral evidence and submissions are considered in my reasons below.
RELEVANT LAW AND DIRECTION NO. 110
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, in cases where the grant of the visa is being considered the exercise of a discretion about whether the visa should be refused.
Section 501(1) of the Migration Act is as follows:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
Direction No. 110
As stated above, the Tribunal (standing in the shoes of the Respondent) is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No. 110). Direction No. 110 replaced the previous Direction No. 99.
The purpose of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.
Objectives
Paragraph 5.1 of Direction No.110 sets out of the Migration Act. Specifically, paragraph 5.1(2) of Direction No. 110 provides:
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.
Principles
Paragraph 5.2 of Direction No. 110 sets out the ‘principles’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501’ and are expressed 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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No. 110, the Tribunal must take into account the ‘primary considerations’ listed in paragraph 8 of Direction No. 110, and the ‘other considerations’ listed in paragraph 9 of Direction No. 110, where relevant to the decision.
Primary considerations – paragraph 8 of Direction No. 110
In making a decision under s 501CA(4) of the Migration Act, the five ‘primary considerations’ the Tribunal must take into account are:
(i)protection of the Australian community from criminal or other serious conduct:
(ii)whether the conduct engaged in constituted family violence;
(iii)the strength, nature, and duration of ties to Australia;
(iv)the best interests of minor children in Australia; and
(v)expectations of the Australian community.
Other considerations – paragraph 9 of Direction No. 110
The ‘other considerations’ the Tribunal must take into account, as far as they are relevant, include (but are not limited to):
(i)legal consequences of the decision;
(ii)extent of impediments if removed; and
(iii)impact on Australian business interests.
Primary & other considerations – further guidance
Further guidance as to how a decision-maker is to apply the considerations in
Direction No. 110 can be found in paragraph 7, which provides:(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
THE CHARACTER TEST
As the applicant has been convicted of an offence and sentenced to a term of imprisonment exceeding 12 months, I find that the applicant has a substantial criminal record as defined in s 501(7)(c) and that he does not pass the character test. The applicant concedes that this is the case.
I will now consider whether the discretion to refuse the applicant’s visa should be exercised.
CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
The first primary consideration, in paragraph 8.1(1) of Direction No. 110, focuses on the protection of the Australian community. Direction No. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. 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.
Paragraph 8.1(2) of Direction No. 110 provides that decision-makers should also give consideration to:
(i)the nature and seriousness of the non-citizen’s conduct to date; and
(ii)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction No. 110 provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending and 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 and 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 and/or sexual nature against women or children, regardless of the 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:
....
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled)...
c)....the sentence imposed by the courts for a crime or crimes;
d) the impact of offending on any victims of offending or other conduct and their family,....
e) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
f) the cumulative effect of repeated offending;
(Emphasis added)
In this matter, I have had regard to the applicant’s criminal offending as well as other conduct.
The seriousness of the sexual offence the applicant was convicted of on 13 June 2017 is not in dispute. In his recent statement,[19] the applicant acknowledged that he had committed a ‘horrible and unforgivable crime’ and that he ‘should not be pardoned by the Australian community because [he] committed a very serious crime.’ He also stated:
My victim may not recover all her life from the trauma I caused to her. She would not be the same person as she was before. Her life completely changed after I committed that horrendous crime. She would struggle all her life and she might not be able to become a successful person. She may not be able to become a good daughter, girlfriend or a wife. This lifelong trauma will haunt her, all her life and would never let her live her life peacefully.[20]
[19] Exhibit A1 (A26), JTB p 600.
[20] Ibid.
Based on the Agreed Facts for Sentence,[21] which the applicant acknowledged and agreed with at the hearing, the victim awoke in the applicant’s car to find him on top of her, engaging in non-consensual sexual intercourse, and despite her attempts to push the applicant away, she was unable to stop the assault.
[21] Exhibit R2, JTB pp 724-729.
I find the crime committed by the applicant was a sexual crime. It was committed against a young woman, who was heavily intoxicated and very vulnerable in that condition. I find that this offence is viewed very seriously by the Australian government and the Australian community, regardless of the sentence imposed. Nevertheless, the imposition of a custodial sentence is considered a last resort in any sentencing process that is applied reasonably and correctly. Such sentences are seen as a measure of the objective seriousness of an offence.[22] The maximum penalty for the offence the applicant was convicted of is imprisonment for 14 years. When sentencing the applicant, the Court found that the objective seriousness of the offence was in the upper or top band of the middle range and sentenced the applicant to imprisonment for nine years with a non-parole period of six years and four months. The significant sentence further reflected the seriousness of the applicant’s offence.
[22] See s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW).
On 12 July 2019, the Court of Criminal Appeal dismissed the applicant’s appeal against the severity of his sentence and noted that ‘the sentence imposed does not stand out as being inconsistent with the finding of objective seriousness.’[23]
[23] G7 at [70].
In the Statement of Facts, Issues and Contentions (SFIC), the Minister referred to the applicant’s criminal history as ‘solely’ comprising of the sexual assault offence, reflecting the delegate’s remark in the decision under review that the applicant’s offending was limited to the sexual offence. This is despite the Minister attaching to the SFIC a copy of NCAT’s decision affirming the cancelation of the applicant's authority to drive a taxi-cab. At the hearing, the Minister questioned the applicant in relation to the offences referred to in NCAT’s reasons for decision and the applicant admitted that, on three separate occasions, he had acted dishonestly by making false declarations with respect to various driving offences, which are indictable offences pursuant to s 25 of the Oaths Act 1900 (NSW). While the applicant was not prosecuted and convicted of these offences, I am satisfied that criminal conduct occurred.
The three false statutory declaration were made by the applicant between August 2012 and April 2013, and during the three years before he committed the sexual offence in October 2015. This indicates repeat offending with increased disregard for Australian law.
It was submitted by the Minister that, during cross examination the applicant had acknowledged not disclosing to the Department his criminal conduct prior to the sexual offence, namely making false statutory declarations, when applying for his Partner visa on 16 May 2023. The applicant explained this omission by stating that his lawyer had completed the relevant forms and he had signed the forms without examining their contents. While I accept that the applicant had not voluntarily disclosed this information to the Department, I do not consider that he provided false or misleading information to the Department in his Partner visa application in this regard. The questions under the ‘character declarations’ in the application form required the applicant to disclose information in relation to offences he has been charged with, offences he has been convicted of and matters currently awaiting legal action. None of the question required him to disclose other criminal conduct. The applicant appears to have provided correct information in his character declaration and had further declared that he provided ‘complete and correct information in every detail on this form.’ I do not consider that that the applicant’s lack of disclosure makes any difference to the overall assessment of his conduct or offending.
However, I have considered the applicant’s concession during cross examination that he provided bogus Pakistani documents to the RRT in connection with his Protection visa application, which ultimately led to the cancellation of his Protection visa. The applicant maintained at the hearing that he did not know whether the documents were genuine as he did not personally obtain them. I do not find this explanation to satisfactorily address the provision of false documents to the RRT.
As to the nature and seriousness of the applicant’s conduct, I find that the applicant’s sexual offence was very serious. This offence was preceded by other criminal conduct. While this conduct was less serious and the applicant was not convicted of the related offences, his repeat offending demonstrates his disregard for Australian laws. This is compounded by the provision of false documents in support of his Protection visa application. This factor weighs significantly in favour of exercising the discretion to refuse the visa.
Risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No. 110 states, in part:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen -whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
(Emphasis added)
The impact of sexual offences on victims, particularly women and children, and their significant cost to the wider community, including physical, psychological, and financial harm, are widely recognised. I have set out above the very serious nature of the applicant’s sexual offence and the applicant’s own statement regarding the likely impact of the offence on his victim.
I find that, should the applicant engage in further criminal or other serious conduct, the nature of the harm would be very serious.
I have considered the likelihood of the applicant engaging in further criminal or other serious conduct.
In its decision to dismiss the applicant’s appeal against the severity of his sentence, the Court of Criminal Appeal referred to a letter from the applicant to the sentencing judge, apologising to the court, accepting the jury’s verdict, accepting responsibility, and expressing remorse for his actions. The Court noted that ‘until the letter from the applicant was forwarded to the judge, there was no evidence of any sort dealing with remorse.’[24] The Court also referred to the following remarks by the sentencing judge:
There has still been no clear acceptance by him of his guilt, of his acceptance
of what the victim said happened to her, what he did and what the jury accepted.
I cannot see that this means he accepts responsibility for his offending
behaviour, his actions. Because he has not given evidence, he has not been
able to be cross-examined as to exactly what he says in his letter means (sic)
…
I am not satisfied this mitigating feature, even on the balance of probabilities, is made out.
[24] G7 at [41].
The Minister submitted at the hearing that that the applicant’s subsequent expressions of remorse in his letter to the sentencing judge were only made once the ramifications of his offence became clear.
As already noted, the applicant agreed at the hearing that the facts set out in the Agreed Facts for Sentencing reflected his actions at the time of the offence. He also acknowledged that he had committed a very serious offence and stated that he is ‘very, very remorseful’. He contended that, as a person who does not consume alcohol, he was unaware of the effect of alcohol on consent at the time of the offence and that he had ‘learned all about this’ during the trial and while incarcerated.
Expressions of remorse were also reflected in the applicant’s recent statement, stating that he had committed a ‘horrible and unforgivable crime’ and acknowledging the likely impact of his crime on the victim. The character references and statements of support provided on the applicant’s behalf from members of his family and his friends,[25] including his wife, brothers and friends, also referred to his ‘genuine remorse’ for his actions, ‘great deal of remorse’, ‘conviction not to repeat his mistake’, and ‘really [feeling] bad and ‘extremely remorseful’ about the crime.[26] In her statements, the applicant’s wife further stated that the applicant has ‘used his time in prison to reflect on his actions and to work towards personal growth and rehabilitation.’
[25] G13(a)-(t) and Exhibit A1 (A8-A13; A15-A25).
[26] G13(a), G13(f), G13(k), G13(l), G13(p) and Exhibit A1 (A16).
I am, however, unable to reconcile these expressions of remorse with the applicant’s ‘statement of personal account regarding the offence’,[27] which appears to have been prepared following his release from prison and during the time he was held in immigration detention. In that statement the applicant put forward an account of the offence contrary to the Agreed Facts for Sentencing. The applicant stated:
3. [On 18 October 2015] I was approached by a female, who I later found was a 22-year-old British citizen. She asked me if I could give her a ride to her home.
4. On our way, the woman and I started talking to each other. During the conversation, we mutually agreed to have sexual intercourse in the car.
5. I stopped at a service station and purchased a packet of condoms. I asked the girl if she needed anything from the service station. She asked if she could get a bottle of water.
6. I later parked in a small street where we both jumped in the back seat of the car. The female put a condom on me while I was not fully erect. She then sat in my lap. I could not have proper sex because of an incomplete erection. The female later angrily jumped back on the front seat, and we drove off to her home.
7. Prior to the offence, I was being treated for the Urinary Tract Infection and I was on medication. As far as my knowledge is concerned, my erection problem was due to the medication I was taking.[28]
(Emphasis added)
[27] G11.
[28] Ibid.
A Risk Mitigation Plan, prepared by the Parole Unit at Cessnock Correctional Centre, noted the applicant’s ‘ongoing view that the offence was “mutual”’[29] and stated the applicant ‘continues to believe the offence was “mutual” and has minimal concept of consent relating to the victims intoxication levels.’[30] These comments were also reflected in a Pre-release Report, dated 20 March 2023, and prepared by Tracie McGregor, Team Leader, Cessnock Community Corrections. According to the report:
[The applicant] accepts responsibility for any harm he caused to the victim however denies penetrating the victim. He reported feeling he was ‘tricked’ by NSW Police and legal practitioners into making the disclosures that led to his conviction. [The applicant] maintains that the sexual activity was ‘mutual’ and that the “only people who know what happened that night are the two of them”.
Overall, [the applicant] maintains he was unaware the victim was too intoxicated to consent to the sexual activity and claims he did not offend intentionally, though in hindsight feels he could have evaluated the situation better, with more understanding of the signs of intoxication.
[The applicant] reported that he has read a lot of literature whilst in custody to develop a better understanding of what constitutes consent in relation to sexual activity to ensure he is not placed in the same situation again.[31]
(Emphasis added)
[29] Exhibit R2, JTB p 646.
[30] Ibid, JTB p 647.
[31] Ibid, JTB p 654.
In a separate section and under the heading ‘Attitude to victim’, the report stated:
[The applicant] disagrees with the police facts and claims the sexual activity that did occur was ‘mutual’ and he did not force anything onto the victim. [The applicant] continues to deny any awareness of the victim’s level of intoxication and denies she was falling in/out of sleep at the time of offence. [The applicant] further claims there was no sexual intercourse as he was physically impotent, however admits if he was able to, intercourse would have proceeded as he felt they were both enjoying it. [The applicant] felt there was some discrimination by authorities and the legal system given his cultural background and limitations on his understanding/context of certain words in English such as consent and mutual.
Despite [the applicant’s] denial of the offence, he expressed some limited understanding for the impact on the victim, whom he identified could experience ongoing trauma with future sexual partners as she clearly felt violated by his actions, despite denying an ill intent on his behalf.[32]
(Emphasis added)
[32] Ibid, JTB p 655.
In my view, the above evidence significantly blunts the applicant’s expressions of remorse in his oral evidence at the hearing, his written statements and the statements submitted on his behalf and undermines his evidence in relation to what he had ‘learned’ during the trial and his incarceration. While I accept that the applicant is remorseful, I am of the view that his remorse is primarily directed at having caused suffering and shame to his family and disgracing them. I also accept that he has attempted to gain a better understanding of sexual consent, but I am not satisfied that he fully appreciates the seriousness of the nature of the offence and his level of culpability.
A report from Dr Olav Nielssen, psychiatrist, submitted to the sentencing judge stated:
[The applicant] was assessed to have good prospects for rehabilitation and a low likelihood of recidivism. He does not have a history of antisocial behaviour or substance use, which are the two main predictors of reoffending. He was not found to have a psychiatric disorder associated with impulsive or self-defeating behaviour. He has strong community ties in the form of his wife and family, and his wide social network and a history of consistent employment.[33]
[33] Cited in the Pre-release Report, Exhibit R2, JTB p 655.
The sentencing judge considered the applicant’s prospects of rehabilitation to be reasonable, but Her Honour could not make a finding one way or the other on whether he was likely to reoffend.[34]
[34] G7.
The applicant’s Pre-Sentence Report noted that he was assessed by a Corrective Services NSW psychologist as being an ‘average risk’ of committing a further sex offence.[35] As a result of this and other assessments, he was assessed as ineligible for ‘offence targeted programs in custody’, despite having expressed ‘a willingness to undertake intervention’ and wanting to develop more understanding on the term consent and to increase the likelihood of being granted parole’ (sic).[36] The Report further noted that the applicant ‘remains willing to undertake sex offender interventions post release by way of psychological intervention if directed by Community Corrections.’[37] This willingness was reflected in the applicant’s evidence at the hearing and I accept his oral evidence that he has booked an appointment with a psychologist on 4 February 2025 in compliance with his parole conditions. There was no other evidence before me to indicate that the applicant has received or sought any other psychological intervention.
[35] Pre-release Report, Exhibit R2, JTB p 658.
[36] Ibid, pp 656 and 657.
[37] Ibid.
The applicant’s clinical records in immigration detention refer to a history of depression, anxiety, and insomnia. I accept that in July 2023 he was prescribed Fluoxetine capsules, replacing previously prescribed Mirtazapine tablets to treat his insomnia. I further accept that the applicant was diagnosed with adjustment disorder with depressed mood in August 2023 and that he continues to take Fluoxetine. There have been no further recorded changes in relation to the applicant’s mental health.
In a medical certificate issued on 16 January 2025, Dr Masum Ahmed, General Practitioner at Haldon St Medical Centre, stated that the applicant ‘is currently struggling with mental health issues, including Attention Deficit Disorder (ADD), and continues to see a psychiatrist for support.’ The applicant clarified at the hearing that he has been diagnosed with an adjustment disorder and not attention deficit disorder and that he does not see a psychiatrist. I accept the applicant’s evidence in this regard and do not place any weight on Dr Ahmed’s account of the applicant’s diagnosis and the mental health support he is currently receiving.
I accept that the applicant completed several courses in custody, obtaining vocational certificates in cleaning operations, hospitality, hygiene, food safety, creative industries, coffee preparation, and writing and numeracy. I also accept that he completed a course in Personality Development while in immigration detention. This appears to be the only rehabilitation course completed by the applicant.
The applicant was incarcerated in 2017 and released into immigration detention in June 2023. He was released from immigration detention on 14 November 2024 and has spent very little time in the community since he was convicted of the sexual offence. However, there is no doubt that his wife and daughters are wholeheartedly committed to supporting him. He also appears to have the support of close friends. The various statements submitted in support of the applicant referred to the applicant’s criminal conduct as ‘out of character’,[38] ‘not in line with his typical behaviour’[39] and ‘an isolated incident’.[40] In their evidence at the hearing, Mr Ali and Mr Humdani reiterated that they considered the offence to be ‘out of character’. However, they also acknowledged that they were unaware of the applicant’s criminal conduct prior to the sexual offence.
[38] See G13(i), (k), (m), (n), (q) and (t).
[39] G13(p).
[40] Ibid.
On the basis of the evidence already referred to, until relatively shortly prior to his release from prison, the applicant had maintained that the sexual activity with the victim was ‘mutual’ and expressed disagreement with the agreed facts for sentencing. He was assessed in prison as being an ‘average risk’ of committing a further sex offence and there is limited evidence of rehabilitation achieved by the applicant during the period of his imprisonment and detention and following his release into the community. I have significant concerns regarding the applicant’s expressions of remorse with respect to his appreciation of the seriousness of the nature of the offence and his level of culpability. I have found above that the applicant’s remorse is primarily focussed on the suffering and shame he brought to his family and himself. Nevertheless, I consider the torment he has caused and perceives to have caused his family is immense and I am of the view that this factor, as well as the continuing support he is receiving from his family, would significantly reduce any risk of reoffending.
However, I am also mindful that I must have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. [41] Given the fact that applicant has applied for a Partner visa, which would enable him to stay in Australia,[42] the nature of harm to individuals or the Australian community if the applicant’s conduct were to be repeated, and considering the fact that there is limited evidence of rehabilitation achieved and that the applicant has spent very little time in the community since his last offence, I am of the view that any risk that the applicant’s conduct may be repeated is unacceptable.
[41] Direction No. 110 at cl 8.1.2(1).
[42] Direction No. 110 at cl 8.1.2(2)(c).
I find that the primary consideration in paragraph 8.1 weighs significantly in favour of exercising the discretion to refuse the applicant’s visa.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of Direction No. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before me that the applicant has committed any family violence offence. I give this consideration neutral weight.
The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction No. 110 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant’s immediate family in Australia are his wife, AP, his two adult daughters and his minor son. He has no other family members in Australia.
The applicant and AP have been married for approximately 21 years. I accept that, despite the applicant’s offence and subsequent incarceration, AP has remained committed to and supportive of him.
I accept that, together with her children, she visited and maintained contact with the applicant as frequently as possible during his incarceration and while he was in immigration detention, ensuring unbroken and close family bonds. In her written statements,[43] AP stated that the applicant ‘has been a loving and supportive husband and father, actively involved in our children's lives and committed to providing them with a stable and nurturing environment.’ This evidence was supported by the applicant’s daughters’ written statements and their oral testimony.
[43] G13(a) and Exhibit A1 (A16).
I accept that AP was diagnosed with post-natal depression soon after the birth of her son in March 2015 and continues to take medication to manage her mental health. I accept that, as a consequence of her husband’s offending and incarceration, she has endured hardship and has shouldered the full burden of caring for and financially supporting her family. Nevertheless, AP has demonstrated great resilience in securing employment in the childcare industry, obtaining a diploma in early childhood education and recently enrolling in a Bachelor of Primary Education.
I also accept that, like their mother, the applicant’s daughters are devoted to their father and supportive of him. I further accept their evidence regarding the heavy emotional toll separation from their father had on them as a result of his incarceration, as well as their evidence concerning the additional responsibilities that were placed on their young shoulders as they supported their mother in running the household. Despite enduring these challenges, they are both enrolled at university, with TN having completed her first year of a combined law degree.
I accept that the family has experienced a renewal and restoration of happiness following the applicant’s release from immigration detention in November 2014. In particular, I acknowledge that the applicant’s son has benefited from being physically with his father, who, as a ‘stay home dad’, has been able to play a greater role in his son’s day to day life. I have addressed the best interests of the applicant’s son in more detail further below.
I have little doubt that if the applicant’s removal results in his separation from his immediate family, it would have a great impact on each of his family members. As evidenced by their testimony, the devotion of the applicant’s wife and his daughters and their desire to remain together as a family is at a level that they each resolutely stated in their evidence that they would accompany and live with the applicant regardless of where he is removed to. As a protection finding has made in relation to the applicant, he cannot be removed to Pakistan, unless the applicant asks the Minister, in writing, to be removed to that country.[44] However, as explained further below, there is a tentative and condition-based prospect that the applicant might be removed to a third country, and he would have to comply with the directions of the Minister to facilitate his removal. Whether the applicant is voluntarily removed to Pakistan or to a third country at the Minister’s directions, I find that his wife and children would accompany him. The applicant’s son was born in Australia, he is in primary school with certain behavioural challenges and has not lived in any other country. His daughters have lived in Australia since 2010. They are both pursuing tertiary qualifications in an Australian university and have strong ties to the community. Relocating to another country with their father would rupture these ties and create readjustment challenges for all members of the applicant’s immediate family, with a greater impact on his children.
[44] Section 197C(3)(c)(iii) of the Act.
The applicant arrived in Australia in 2007 and his criminal conduct, showing disregard for the law, began in 2012, culminating in the sexual offence in 2015. His offending, therefore, began relatively soon after he arrived in Australia. I have considered the written statements in support of the applicant provided by his friends in Australia. I accept that the vast majority are Australian citizens. I also accept that he has helped his friends when needed and has been working voluntarily in a local Mosque as a cleaner since his release into the community. While I find that the applicant has social links and has made limited positive contribution to the community, I am not satisfied that the applicant’s friends or the broader community would be adversely impacted if the applicant’s visa was refused, and he was removed from Australia.
Overall, I conclude that the applicant’s removal from Australia would adversely impact members of his immediate family, and this weighs heavily against the refusal of the visa. However, given the uncertain and contingent possibility of his removal to a third country and the fact that he will be able to remain in Australia in the foreseeable future on a BVR, I give the primary consideration in paragraph 8.3 of the Direction moderate weight against exercising the discretion to refuse the applicant’s visa.
The best interests of minor children in Australia
Paragraph 8.4 of Direction No. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must decide whether cancellation or refusal under s 501 of the Migration Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
I have considered the factors that must be taken into account in determining the best interests of a child as outlined in paragraph 8.4(4) of Direction No. 110.
The applicant’s son, MN, is nine years old. No direct evidence of his views was submitted to the Tribunal. There is no evidence before me to suggest that he has been abused or neglected by the applicant in any way or that he is at risk of being subjected to exposed to family violence perpetrated by the applicant. There is also no evidence to suggest that he has suffered or experienced any physical or emotional trauma arising from the applicant’s conduct.
The available evidence before me indicates that MN was 22 months old when the applicant was incarcerated. The Minister submitted that that the applicant has had only a limited relationship with his son after being imprisoned and that he is not a good role model for his son. Having regard to the nature and seriousness of the applicant’s criminal offending and conduct, I accept that he would not be a good role model for his son, and I cannot rule out any negative impact the applicant’s prior conduct, and any likely future conduct, would have on his son. However, I also accept the evidence of the applicant and his wife that he has been a loving father to their son. The applicant’s children, including his son, visited him as often as possible before and after the restrictions imposed as a result of the COVID-19 pandemic and he remained in daily contact with his all his children through phone or video calls at other times. I also accept that, following his release into the community, the applicant has been a ‘stay home dad’ and has had greater involvement in his son’s life. This close involvement appears to have come to a temporary halt since 30 December 2024 as a result of MN travelling with his mother and sisters to Pakistan for a period of six weeks to attend a family wedding in Pakistan.
The Minister submitted that the consideration in paragraph 8.4 looks to the best interests of minor children in Australia affected by the decision. As MN is not currently in Australia, his interests should not be a primary consideration, rather an ‘other consideration’ and therefore afforded less weight. In support of this contention, the Minister referred to the decision of the former Administrative Appeals Tribunal in DJYG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2553 (20 July 2022). Respectfully, I reject this submission and the mischaracterisation of the Tribunal’s reasons in DJYG. In that decision, the Tribunal considered the interests of the applicant’s children under the similarly worded paragraph 8.3 of Direction No. 90. However, only after finding that four of the applicant’s children resided or lived in New Zealand, the Tribunal considered the interests of those specific children as an ‘other consideration’. MN is an Australian citizen and resides in Australia for all intents and purposes. There was no evidence before me to suggest that he would not be returning to Australia on 14 February 2025 with his mother and sisters as scheduled. I find that his temporary absence from Australia does not preclude his interests being taken into account as a primary consideration.
I accept that there has been limited physical contact between the applicant and MN over the past nine years due to the applicant’s incarceration and detention. I also accept that during that period AP has fulfilled a parental role in relation to MN. I am also satisfied, however, that there has been meaningful contact between the applicant and his son, strengthening their existing relationship. In their evidence, the applicant and his wife referred to observations, including by school teachers, that MN had displayed ‘symptoms of ADHD’. Following the hearing, the applicant submitted letters from MN’s school detailing these observations. I am unable to have regard to these documents as mandated by s 500(6J) of the Act. Nevertheless, while I accept that MN may have manifested behavioural and attention issues, I do not accept that he has ever been diagnosed with ADHD or any other disability. The medical evidence submitted suggests that MN was referred by his GP to other practitioners for ‘Failure to Thrive’ and ‘troubling at home & school with ADHD & other behavioural issues for your kind review & input for further management’ (sic). There is no evidence of a formal diagnosis or a need for ongoing treatment. Regardless, I do accept that the applicant’s closer involvement in his son’s life may assist in alleviating some of the behavioural issues the latter has been displaying and that MN’s separation from his father, should he be removed from Australia, will not be in his best interest.
The evidence given to the Tribunal strongly suggests that if the applicant were to be removed from Australia, his wife, and children, including MN, would accompany him, regardless of the destination. While this would alleviate any concerns arising as a consequence of a potential separation, I also consider that it would not be in the best interests of MN, who has resided in Australia all his life and is about to enter his fifth year of schooling, to be uprooted. This would weigh heavily against exercising the discretion to refuse applicant’s visa. On the other hand, as I have noted above and further below, at present, the applicant’s removal to a third country is only a contingent possibility and he is likely to remain in Australia with his family on his BVR for an undetermined period.
Overall, I find that the primary consideration in paragraph 8.4 of the Direction weighs against the discretion to refuse the applicant’s visa, but only moderately.
Expectations of the Australian community.
Paragraph 8.5(1) of Direction No. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) of Direction No. 110 directs that 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. 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 certain conduct, including ‘commission of serious crimes against women’. In this context, ‘serious crimes’ include crimes of a violent or sexual nature.
Paragraph 8.5(3) of Direction No. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, paragraph 8.5(3) arguably further qualifies the ‘norm’ expressed in paragraph 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measurable risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This primary consideration is about the expectations of the Australian community as a whole, and in this respect, the Tribunal should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.[45]
[45] See also FYBR v Minister for Home Affairs & Anor [2019] FCAFC 185 at [103]. Special leave refused: FYBR v Minister for Home Affairs & Anor [2020] HCATrans 056.
The applicant has been convicted of an offence regarded as very serious by the community. The community, therefore, expects the government would not allow him to remain in Australia. In addition, I have found above that any risk that the applicant’s conduct may be repeated is unacceptable. Therefore, the Australian community, as a norm, expects the government to not allow the applicant to remain in Australia by granting him a visa.
I conclude that this consideration weighs significantly in favour of refusing the applicant’s visa.
Other considerations – paragraph 9 of direction no 110
Paragraph 9 of Direction No. 110 states:
(1) In making a decision under section 501(1), 501(2) or 501CA (4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.
While this consideration in Direction No. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a visa refusal or cancellation under s 501 or related provisions, including unlawful status, the likelihood of being detained and/or removed, and refusal or cancellation of other visas.
If an adverse visa decision under s 501 of the Act is made, the applicant becomes an unlawful non-citizen. As a result, he would be liable to removal from Australia as soon as reasonably practicable under s 198, and in the meantime, detention under s 189 of the Act. Section 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a non-citizen.
As already noted, a protection finding has been made in relation to the applicant with respect to Pakistan. That protection finding stands regardless of the fact that the applicant’s Protection visa has since been cancelled.[46] There is no evidence before me that a decision has been made in relation to the applicant under s 197D(2) to the effect that he is no longer a person in respect of whom any protection finding would be made.
[46] See s 197C(3)(b).
As explained by paragraph 9.1.1(2) of Direction No. 110, s 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 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. The applicant, therefore, cannot be removed to Pakistan in breach of Australia’s non-refoulement obligations.
Following the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ),[47] detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 if there is ‘no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future’.[48]
[47] [2023] HCA 37.
[48] NZYQ v MICMA [2023] HCA 37 at [54].
The applicant was granted a BVR and released from immigration detention on 14 November 2024. He has been residing in the community since then with work rights. At the time of the grant of the BVR, the visa permitted him to remain in Australia and would have ceased upon the applicant being given notice by the Minister that his removal from Australia is reasonably practicable, or he has breached a condition to which the visa is subject.[49]
[49] See Migration Regulations 1994 (Cth) sch 2 pt 070 cl 070.511.
As a consequence of recent amendments to the Act,[50] under the new s 76AAA, a BVR ceases if the holder has been granted permission by a foreign country, being a party to a third country reception arrangement, to enter and remain in that country. Subject to a number of exceptions, when these conditions are met, the Minister must notify the holder of the BVR that this provision applies to them.
[50] Migration Amendment Act2024 (Cth) and the Migration Amendment (Removal and Other Measures) Act2024 (Cth).
A BVR holder under the Act is a ‘removal pathway non-citizen’.[51] Under s 199B, a removal pathway non-citizen for whom a protection finding has been made may be given a ‘removal pathway direction’ by the Minister to do specified things necessary to facilitate their removal,[52] and the non-citizen must comply or face a mandatory sentence of imprisonment.[53] However, a removal pathway non-citizen cannot be removed to a country in respect of which a protection finding has been made in relation to the non-citizen.[54]
[51] Section 5(1).
[52] See s 199C.
[53] Sections 199B, 199C and 199E.
[54] Section 199B(3).
The effect of these and other amendments made to the Act is that, in addition to the Minister being able to decide that a non-citizen is no longer a person in respect of whom any protection finding would be made, the government can arrange for the non-citizen to be received by a third country. In other words, while the applicant cannot be removed to Pakistan, arrangements can be made for him to be removed to a third country at some unspecified time in the future. This may be viewed as a serious legal consequence of the refusal of the applicant’s visa. However, it is also contingent on several preceding factors and conditions, including permission by a foreign country, and could ultimately never materialise.
I accept that as a result of the refusal of the applicant’s visa under s 501, he will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa.[55] However, as a holder of a BVR, the applicant is able to remain in the community, residing with his family, participate in community or religious activities and engage in his intended entrepreneurial pursuits, including opening smash repair, spray painting, and rental car businesses. In his oral evidence, he was unable to specify any conditions imposed in connection with his BVR and there was no other information before me in this regard. The applicant did not claim and there was no persuasive evidence before me to indicate that any conditions he is required to comply with are onerous or that, in his specific circumstances, they would become onerous overtime.
[55] Section 501E of the Act and reg 2.12AA of the Migration Regulations1994.
Overall, I conclude that the legal consequences of the decision weigh only slightly against the exercise of the discretion to refuse the grant of the Partner visa.
Extent of impediments if removed
Paragraph 9.2 of Direction No. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110, the Tribunal must consider the extent of any impediments that the applicant may face if removed from Australia to their home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraph 9.2(1)(a) to (c) of Direction No. 110 are:
(a)The applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the applicant in their country.
Despite submissions addressing this consideration in the context of Pakistan, as repeatedly noted above, a protection finding has been in relation to the applicant with respect to Pakistan and, therefore, he cannot be removed to Pakistan unless he asks the Minister, in writing, to be removed to that country. At no point the applicant has indicated or expressed the wish to make such a request. In view of his evidence and submissions in relation to the challenges he would likely face in Pakistan and the fact that he is able to remain in the community in Australia on a BVR, I find that he would not voluntarily return to that country to face any impediments. Therefore, I give this consideration neutral weight in relation to Pakistan.
While this consideration appears to relate to the applicant’s home country, I have noted above the possibility of the applicant being removed to a third country, although this may never happen. The applicant is 49 years old. I accept that he has a history of depression, anxiety, and insomnia, that he was diagnosed with adjustment disorder with depressed mood in August 2023 and that he continues to take Fluoxetine. I also find that he speaks English fluently and he is well educated, having obtained a number of vocational qualifications both before and during his incarceration. If the applicant were to be removed to a third country, at present, there is no way of knowing to which country he could or would be removed to. It is, therefore, not possible to ascertain or assess the nature and/or the extent of any impediments the applicant might face in establishing himself in a third country by reference to the matters identified under paragraph 9.2(1)(a) to (c) of Direction No. 110. The applicant’s possible removal to a third country may suggest separation and absence of support from his immediate family. However, as previously noted, in their evidence to the Tribunal, the applicant’s wife and his daughters were adamant that they would accompany and reside with the applicant regardless of where he is removed to. I accept this evidence.
I conclude that this consideration weighs only slightly against exercise of the discretion to refuse the grant of the Partner visa.
Impact on Australian business interests
There is no evidence before me that the refusal of the visa would impact Australian business interests. I give this consideration neutral weight.
CONCLUSION
I have found that the applicant does not pass the character test under s 501 of the Act. In considering whether the visa should be refused, I have had regard to the specific circumstances relating to the applicant. I have also had regard to the considerations referred to in Direction No. 110. The evaluative exercise of weighing up the factors in the Direction is not subject of some ritualistic formula.[56]
[56] Howells v MIMIA (2004) 139 FCR 580 at 127.
Direction No. 110 says that the protection of the Australian community is the highest priority of the government. It is generally to be given greater weight than other primary considerations, and greater weight will also generally be given to primary considerations. However, ultimately, appropriate weight to be given to both 'primary' and 'other considerations'.
I have concluded that the applicant has committed a very serious crime and that the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. I have found that primary consideration 1, the protection of the community, weighs significantly in favour of refusing the applicant’s visa. I have also found that, primary consideration 5, the expectation of the Australian community, also weighs significantly in favour of exercising the discretion to refuse the visa. On the other hand, I have found that, while primary consideration 3 and 4 weigh against exercising the discretion to refuse the visa, they do so only moderately. I have also found that the other considerations of legal consequences of the decision and the extent of impediments if the applicant is removed should be given slight weight against exercising the discretion to refuse to grant the visa. I have given all the remaining considerations neutral weight.
Having regard to all of the primary considerations and the relevant other considerations, I find that the primary considerations 1 and 5 significantly outweigh all other considerations that, individually or cumulatively, weigh against exercising the discretion to refuse to grant the Partner visa. I have, therefore, decided that the discretion to refuse to grant the visa should be exercised.
DECISION
The decision under review is affirmed.
Date(s) of hearing: 22 – 23 January 2025 Date final submissions received: 22 January 2025 the Applicant: Self-represented Solicitors for the Respondent: V Ginnane, Mills Oakley
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