KSQQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 1590

KSQQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1590 (4 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0291
Re:KSQQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:4 April 2023
Date of written reasons: 30 May 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 January 2023 not to revoke the cancellation of the Applicant’s visa.
............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – Burundian citizen – Class XB Subclass 200 refugee visa – failure to pass good character test –criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
30 May 2023
INTRODUCTION

KSQQ seeks review of the Respondent’s delegate’s 9 January 2023 decision not to revoke the mandatory cancellation of his Class XB Subclass 200 refugee visa (the visa).[1]
[1] Exhibit G1 (bookmarked G1- G51), G5, page 19. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by video from the Tribunal’s Brisbane Registry on

14 and 15 March 2023 with the assistance of a Kirundi speaking interpreter. Mr. Kristopher represented KSQQ. The Respondent was represented by Mr Kaplan instructed by Ms Campbell of HWL Ebsworth Lawyers.
On 4 April 2023 the Tribunal met it’s 84 day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
KSQQ is a 39-year-old Burundian citizen who first arrived in Australia on 12 September 2008.[4]
[4] G 46, page 174.
On 26 May 2020, KSQQ’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) [5] because he did not pass the character test given his "substantial criminal record".[6]
[5] G2, page 11.
[6] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
On 17 June 2020, KSQQ made representations to the Minister seeking revocation of the decision to cancel his visa, accompanied by a Personal Circumstances Form, submissions and evidence, including approximately 30 statements and character references.[7]
[7] G9 – G42.
On 9 January 2023, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the decision to cancel KSQQ 's visa[8]. KSQQ was notified of that decision on 10 January 2023.[9]
[8] G2.
[9] G2.
On 17 January 2023, KSQQ applied to the Tribunal for review of the delegate's decision dated 9 January 2023 to not revoke the mandatory cancellation of his visa.[10]
[10] G1.
OFFENDING HISTORY
KSQQ was convicted of 12 sexual offences against two minor children (ten counts of Sexual Penetration of a Child Under 13 and two counts of Indecent Dealings with Child Under 13 Years), for which he was sentenced to a total of six years and eight months’ imprisonment by the District Court of Western Australia on 26 February 2018[11]. The fact that KSQQ fails to pass the character test as a result of these sentences is conceded by him.
[11] G3, pages 38-39 and G5, page 57.
KSQQ’s offending history is set out below:

Court Date Offence Result

Perth District Court of Western Australia 26/02/2018 Sexual Penetration of a Child Under 13
[Counts 1]

Imprisonment: 12 months

Concurrent from 19

February 2018

Perth District Court of Western Australia 26/02/2018 Indecent Dealings with Child Under 13 Years
[Counts 1]

Imprisonment: 12 months

Concurrent from 19

February 2018

Perth District Court of Western Australia 26/02/2018 Sexual Penetration of a Child Under 13 [Counts 8]
Imprisonment: 3
years, 8 months
Concurrent from 19
February 2018

Perth District Court of Western Australia 26/02/2018 Sexual Penetration of a Child Under 13 [Counts 1]
Imprisonment: 18 months
Concurrent from 19
February 2018

Perth District Court of Western Australia 26/02/2018 Indecent Dealings with Child Under 13 Years [Counts 1]
Imprisonment: 3 years
Cumulative from 19
February 2018

Armadale Magistrates Court 20/06/2013 Exceed 0.08g alcohol per 100ml of blood [Counts 1] Fine: $550 Disqualified: 7
months

The prolonged and sustained nature of KSQQ’s criminal conduct, as well as an indication of its impact on his victims Child Victim 1 and Child Victim 2, can be seen in His Honour Judge Gething’s sentencing decision.[12] Relevant extracts of this decision are attached as Annexure B.
[12] G5.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by s 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
MATTERS FOR CONSIDERATION
The character test
KSQQ’s visa was cancelled on the basis that he had failed the character test. He had been sentenced to a term of imprisonment of more than 12 months and was serving that sentence on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Sections 501(6)(a) and 501(7)(c) of the Act).
Consequently, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under s 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied as to whether there being ‘another reason’ to revoke the cancellation decision.[13] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[14]
[13] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[14] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why KSQQ’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[15] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:
1If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
2The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
3The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
4However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
5Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
6If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.”
[15] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, s 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[16]
[16] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[17]
[17] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[18]
1Australia 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.
2Non-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.
3The 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 risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. 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.
6Decision-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 risk of causing physical harm to the Australian community.
[18] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction respectively where relevant to their decision making.
Paragraph 8 of the Direction provides the following primary considerations:
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 identifies the following non-exhaustive list of other considerations to be considered where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[19] The weighing process is determined by decision-makers exercising the relevant power under the Act.[20]
[19] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[20] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE ISSUES
KSQQ repeatedly sexually assaulted two young children - Child Victim 1 for approximately six years, and Child Victim 2 for approximately three years. He received a prison sentence of six years and eight months for his crimes.
The issue is whether the combination of the strength, nature and duration of KSQQ’s ties to Australia and the best interests of the identified minor children outweigh the remaining primary and other considerations.
EVIDENCE
The following is a summary of the evidence adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and the Applicant and testimony given by KSQQ, his younger brother Mr FF, his older brother Mr FK, his mother Ms ND and his wife Ms GM.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents numbering 252 pages.[21]
[21] Exhibit G1.
(b)Supplementary G Documents numbering 595 pages.[22]
[22] Exhibit R2.
(c)A statement of facts, issues and contentions prepared by the Respondent numbering 14 pages.[23]
[23] Exhibit R1.
(d)KSQQ’s Statement. [24]
[24] Exhibit G1, page 71.
(e)Collated Photographs.[25]
[25] Exhibit A2.
(f)Statutory declaration of Mr FK.[26]
[26] Exhibit A3.
(g)Statutory Declaration of Ms GM.[27]
[27] Exhibit A4.
(h)Statutory Declaration of Mr FF.[28]
[28] Exhibit A5.
(i)Statutory Declaration of Ms ND.[29]
(j)Letter from KSQQ’s and Ms GM’s eldest child-Child L.[30]
(k)Unnamed Handwritten Letter.[31]
(l)Second Letter from Child L.[32]
(m)Photo of Ms ND’s Passport.[33]
(n)Photo of Mr FK’s Passport.[34]
(o)Photo of Mr FF’s Passport.[35]
(p)CCGW and Minister for Immigration and Border Protection (Migration) [2017] AAT 1731.[36]
(q)Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316.[37]
(r)MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416.[38]
[29] Exhibit A6.
[30] Exhibit A7.
[31] Exhibit A8.
[32] Exhibit A9.
[33] Exhibit A10.
[34] Exhibit A11.
[35] Exhibit A12.
[36] Exhibit A13.
[37] Exhibit A14.
[38] Exhibit A15.
Oral Testimony

The witnesses who gave evidence during the hearing were:
(a)KSQQ, the Applicant.
(b)Mr FF, KSQQ’s younger brother.
(c)Mr FK, KSQQ’s older brother.
(d)Ms ND, KSQQ’s mother.
(e)Ms GM, KSQQ’s wife.
KSQQ’s evidence
Relevant aspects of KSQQ’s evidence are summarised below:
Examination-in-chief
As KSQQ and his representatives had not tendered a written statement that complies with ss 500 (6H) and (6J) of the Act, KSQQ affirmed his submissions he made in his 17 June 2020 Personal Circumstances Form.[39]
[39] Transcript, page 7, lines 29-41. See also G8, page 73.
Cross-examination
Mr Kaplan conducted a thorough cross-examination of KSQQ addressing the following aspects of KSQQ’s application:
KSQQ’s acceptance of responsibility
“MR KAPLAN : Certainly. [KSQQ], you told the peer support person your history and that history was that you still proclaimed your innocence, correct?
INTERPRETER: No, I didn’t proclaim innocence.
MR KAPLAN: So, the peer support person just made up this response, did they, [KSQQ]?
INTERPRETER: I don’t get to the - can I ask him to repeat?
MR KAPLAN: I can certainly repeat the questions, [KSQQ].
INTERPRETER: No. No. I mean his response to you. I didn’t get it. I want him to repeat. What I want to say he may not get my full history while he’s trying to help me.
MR KAPLAN: [KSQQ], it’s quite simple, isn’t it? You either profess your innocence to your peer support person and told them that you have to live with the jury’s decision, but within yourself you know the truth, or you accept that you committed these offences, and so it’s one or the other. It’s difficult, you’d accept wouldn’t you, for a peer support person to misunderstand your history when it’s either one or the other of those alternatives?
INTERPRETER: No. For me I understand I’m not innocent and I understand why I’m in prison.
MR KAPLAN: But you did not accept at the time that you conveyed your history that you committed these child sex offences. Isn’t that ‑ ‑ ‑
INTERPRETER: Yes. What I can say there may be a bad communication between myself and the peer supports, but the most important for me is to ask forgive me on what’s written there, forgive me (indistinct) them, I (indistinct) to you (indistinct) then that I want to ask them to forgive me.”[40]
[40] Transcript, page 14, line 26 – page 15, line 14
and
“MR KAPLAN: And what you had said to the peer support person at the time that this form was completed in June 2020 was:
Look I understand the jury has found me guilty of child sex offences, but I did not do it. In myself I believe I am innocent and I know within myself the truth. I did not do it, but I understand and accept the jury found me guilty.
That was the history that you gave to the peer support person. Isn’t that right?
INTERPRETER: On this question and any other question, including in this - the court, I’m asking to be forgiven.
MR KAPLAN: But you said to the peer support person, didn’t you, look, I didn’t do it?
INTERPRETER: On this question especially if I say I’m not guilty I just want to apologise and ask for to be forgiven.
MR KAPLAN: It’s a pretty simple question, [KSQQ]. Do you accept the proposition that I’m putting to you that you said that the peer support person that you did not commit the child sex offences? Do you accept that proposition or do you deny it?
INTERPRETER: This I understand and I once again to be forgiven and I will (indistinct) family, sex offender issue, especially with my wife so I am asking to be forgiven.
MR KAPLAN: It’s a pretty simple question, [KSQQ]. Do you accept the proposition that I’m putting to you that you said that the peer support person that you did not commit the child sex offences? Do you accept that proposition or do you deny it?
INTERPRETER: This I understand and I once again to be forgiven and I will (indistinct) family, sex offender issue, especially with my wife so I am asking to be forgiven.”[41]
[41] Transcript, page 19, line 24; page 20, lines 1-5.
and
“MR KAPLAN: So, in 2019 you denied in your report conversations with prison officials that you committed the child sex offences of which you were convicted. Is that what you’re saying?
INTERPRETER: 2019 I didn’t really say that I was not guilty because I was not to be - as I said I wasn’t realising what happened to - I was just arriving in the prison with a lot of confusion.
MR KAPLAN: [KSQQ], in response to one of my earlier questions about the content of the August 2020 individual management plan record you said to the Member that that [sic] reflected your position in 2019, or words to that effect. And what I’m asking you is whether the proposition that you maintained a stance of denial in relation to your offending, in other words you denied having committed the child sex offences, was the view that you held and expressed to prison officials in 2019.
INTERPRETER: On this issue I just want to mention that I am asking to be forgiven. I don’t know what I did to my family, my community and entire (indistinct).
MR KAPLAN: Well, [KSQQ], you’re now saying to the Member that you wish to be forgiven for the child sex offences that you committed and were found guilty of and the effect that it had on your family, and so on, in order to improve your chances of getting your visa back. That’s the real reason why you’re saying these things. Isn’t that right? And you are not saying what you just said in response to my previous question because you really believe those things. Isn’t that correct?
INTERPRETER: On this question, on this issue, my position is to keep asking to be forgiven.”[42]
[42] Transcript, page 22, lines 1-30.
and
“MR KAPLAN: Now, that certainly is the position that you conveyed to the person who conducted the parole interview, (indistinct) back in August 2022. Mr Associate, could I ask you please to go to page 265 of the supplementary G documents? Now, you would accept what I’m (indistinct) by the time of the parole interview in August of last year you changed your position, did you not, and stated that you accepted (indistinct) for your behaviour and also (indistinct) expressed remorse for your action. Do you remember that happening at the parole interview?
INTERPRETER: I remember the interview.
MR KAPLAN: Yes, and what I’m asking you is whether you remember at the interview saying words to the effect that you accept responsibility for your actions and you express remorse for your actions?
INTERPRETER: Yes.
MR KAPLAN: Yes. And so if you look at the final paragraph on that page you will see that it says there:
[KSQQ] agreed with the statement of material facts. When discussing the offences, he accepted responsibility for his behaviour and expressed remorse for his actions. [KSQQ] found it difficult to identify contributing risk factors, potentially from lack of intervention to date or (indistinct) barrier. As such, [KSQQ] was unable to verbalise strategies to reduce risk of recidivism.
I’ll just ask for that to be translated to you, [KSQQ].
INTERPRETER: Yes, I’m finishing. The last sentence is - you mean to go up to there - so I talked to “risk of recidivism.”[43]
[43] Transcript, page 28, lines 16-47.
KSQQ’s country of citizenship
“MR KAPLAN: And so you accept that you’re a citizen of Tanzania?
INTERPRETER: I don’t know how to say it, but I was born and raised in Tanzania.
MR KAPLAN: Yes, so what I’m asking you is - you recall mentioning to people in the prison that you’re a citizen of Tanzania, and I’m asking you whether you are a citizen of Tanzania?
INTERPRETER: I was born and raised in Tanzania. But Tanzania is a country they don’t recognise my citizenship.
MR KAPLAN: What do you mean by that [KSQQ] they don’t recognise your citizenship of Burundi, is that what you’re saying?
INTERPRETER:(Indistinct) the authorities, they don’t recognise me as a Burundian.”[44]
KSQQ’s fear for his safety if returned to his country of citizenship
“MR KAPLAN: I see. So, this is accurate. All right. Mr Associate, can you please turn up to page 95. Now, [KSQQ], the first question on this page asks:
Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?
And the response that the peer support person gave after you provided to them your history and circumstances was:
If I were to return to my country of citizenship I would be killed by people who killed my father.
My question to you is whether a peer support person accurately wrote down the history and circumstance that you conveyed to them?
INTERPRETER: Yes.”[45]
[44] Transcript, page 33, lines 3 – 19.
[45] Transcript, page 15, line 32 - page 16, line 1.
Whether KSQQ has apologised to his victims and the extent of his English language skills
“MR KAPLAN: Yes, of course. I’ll repeat the question. [KSQQ], you have adduced no evidence in this proceeding, have you, that you have apologised to the various children you were found guilty of sexually abusing, correct?
INTERPRETER: When I went to the parole interview, I did confess my behaviour, bad behaviour, with these children. Yes, I did show my - my behaviour.
MR KAPLAN: [KSQQ], I didn’t ask you any question about what you said to the parole interviewer. What I asked you was whether you had adduced any evidence in this proceedings (sic)- your case before this tribunal - that you have apologised to the various children that you were found guilty of sexually abusing. That’s correct, isn’t it? There’s no such evidence adduced by you.
INTERPRETER: I don’t want to interpret it wrongly, so do you mean that he never show any remorse or (indistinct) never apologised during all these stay in prison on what he did to the children. Is this what you mean?
MR KAPLAN: I will restate the question. You have provided to this tribunal no evidence - have you, [KSQQ] - that you have apologised to the children you have been found guilty of sexually abusing? Yes or no?
INTERPRETER: That is true. I never apologised.
MR KAPLAN: Yes. And you also never apologised, did you, to the parents of the children you (indistinct) of sexually abusing?
INTERPRETER: Agree. And I ask if - to be forgiven.
MR KAPLAN: And the reason why there was no such apology from you either through the parents of the children or to the children themselves, is because you have no insight, [KSQQ], into the seriousness of your offending and the impact that your offending has had (indistinct) of your offences, correct?
INTERPRETER: That will be the reason (indistinct) maybe I didn’t apologise, given my personal circumstance. There’s a condition I had with these children. That may be the reason ‑ ‑ ‑
MR KAPLAN: Now, you’re aware - I’m sorry, please finish your (indistinct).
INTERPRETER: It doesn’t explain why (indistinct) apologise to the parent of all the children, which now I am - I really ask for - to be forgiven.
MR KAPLAN: Now, you’re aware, aren’t you, [KSQQ], that in the years that you were in prison the prison was unable fully to assess you for participation in sexual offender programs because of your lack of English comprehension skills. You’re aware of that, yes? Mr Interpreter?
INTERPRETER: Yes. Yes, I agree.
MR KAPLAN: And you actually took no steps, [KSQQ], while you were in prison to improve your English language skills by, for example, undertaking courses in English, or even undertaking self-education, correct?
INTERPRETER: No, I did go to English class. No, no, I attended some English classes. This is why I speak a bit of English now.”[46]
[46] Transcript, page 30, line 1 – page 31, line 13.
At the end of KSQQ’s cross-examination, the Tribunal decided to switch interpreters to address both its concerns and those of Mr Kaplan about the substantial disparity between the sustained brevity of the interpreter’s English answers compared to the extent of KSQQ’s Kirundi answers.
Re-Examination
Mr Kristopher addressed the following issues:
KSQQ’s acceptance of responsibility and his English skills
“MR KRISTOPHER: Thank you. [KSQQ], you were asked questions by Mr Kaplan for the respondent about your (indistinct) and you were referred to particularly question number 10, for the personal circumstances. You said you were assisted in filling out those forms by one of the persons in prison. It was put to you that you denied and did not accept responsibility for the offending that you committed. Now, my question to you is do you now accept responsibility for those offences?
INTERPRETER: I do accept responsibility, and I am very sorry, and I (indistinct) - I seek leniency to the court for the offence committed.
MR KRISTOPHER: Now, you were referred to also the individual management plans. And, again, in those individual management plans, there was also the denial of those offending. Now, when you attending the individual management plan interviews, you didn’t have an interpreter around when you attended those interviews?
INTERPRETER: No, we never used these interpreters where we used to be.
MR KRISTOPHER: All right. So what you saying (indistinct) of those interviews you had no interpreters?
INTERPRETER: Ever since I’ve been in prison I have never been offered any interpreting services to facilitate my communication.
MR KRISTOPHER: All right. Now, before you went to prison, how good were you at speaking and reading English?
INTERPRETER: No, it’s never been
WITNESS: About that I should say (indistinct) 2019 and 2020 - (language other than English spoken).
INTERPRETER: It’s never been easy for me to communicate in English ever since I’ve been here. I could say that I get about four words out of 10 whenever I am engaging into a conversation in English. And that is why I have assiduously been attending English class ever since 2019.”[47]
KSQQ’s country of citizenship
“MR KRISTOPHER: All right. Now, you were also asked questions about returning to Burundi. And I remember you said you don’t have relatives in Burundi. Now, the question I’m going to ask you is particularly (indistinct) ask about your citizenship. There seems to be some confusion - if you can clarify that - where did you say you were born?
INTERPRETER: I was born in a refugee camp in Tanzania.
MR KRISTOPHER: All right. Now, have you obtained any Burundian citizenship?
INTERPRETER: No.
MR KRISTOPHER: Do you have Tanzanian citizenship?
INTERPRETER: No.”[48]
[47] Transcript, page 41, line 39 – page 42, line 29.
[48] Transcript, page 43, line 9 – page 43, line 24.
Mr FF’s evidence
Mr FF affirmed his 20 February 2023 statement.[49]
[49] Exhibit A5.
Mr FK’s evidence
Mr FK affirmed his 20 February 2023 affidavit.[50]
[50] Exhibit A3.
When cross-examined about relatives in Tanzania or Burundi, Mr FK stated that he has a sister in Tanzania.[51]
[51] Transcript, page 66, lines 16-21.
Ms ND’s evidence
Ms ND affirmed her 20 February 2023 statement.[52]
[52] Exhibit A6.
When cross-examined about relatives in Tanzania or Burundi, Ms ND provided the following answers:
“MR KAPLAN: And do you have any relatives in Tanzania?
INTERPRETER: I have one daughter who got married in Tanzania. She’s the one who is left in Tanzania.
MR KAPLAN: And do you keep in touch with her?
INTERPRETER: Yes, once in a while we call each other and speak.”[53]
[53] Transcript, page 74, lines 37 – 44.
Ms GM’s evidence
Ms GM affirmed her 20 February 2023 affidavit.[54]
[54] Exhibit A4.
When cross-examined, Ms GM provided the following answers in relation to the issues noted below:
Does she have any family in Australia?
“MR KAPLAN: I’m going to ask you some questions now about your family. Do you have any family members in Australia?
INTERPRETER: I have no other family in Australia. I consider my family, first and foremost, to be my husband and, of course, our children. I came here to get married to him and (indistinct) my family here.”[55]
[55] Transcript, page 79, lines 24 – 29.
Issues arising from separation from her husband [KSQQ].
“MR KAPLAN : All right. I’m going to move onto another topic now. Since you’ve been separated from your husband, so, since he has been incarcerated, and recently placed in immigration detention, is it fair to say that you will have needed some help with day to day activities like grocery shopping, or taking your children to school?
INTERPRETER: Yes, life has been very difficult ever since he has been taken away. The children have been asking me every day where he is, when he is coming back, and I don’t know what to tell them. And there are times I have been sick, and nobody knows, children can’t know, others, I can’t rely on them. He was like the pillar for the house, we all relied on him, and since he has been taken it is very hard from an emotional perspective, but also in very, very practical terms more so, but I need him.
MR KAPLAN: But in those cases - sorry, in those situations where you’ve needed help, for example, because you’ve been sick, and you need assistance, it is true, isn’t it, that you’ve been able to fall on your brother’s siblings in order to assist you with the day-to-day chores that I mentioned in my last question?
INTERPRETER: No, it’s - life is extremely hard, because I cannot rely on my family here, everyone is busy, they go about their lives, they all work, they all have their children and families to also look after. And every day in my house life has really been very difficult. Every evening children come to me crying, asking me about their father, and I don’t know what to say, I keep crying. So, it has been a very devastating, ah, period of time ever since he has been taken away.
MR KAPLAN: All right.
INTERPRETER: And it’s like the children keep asking me why isn’t our dad also coming to pick us up, like our children - so, it’s like everyone is being punished in this.
MR KAPLAN: Ma’am, I understand it has been difficult, but you would have to agree with me that the [KSQQ’s] family is an extremely tightknit and close Perth based family. And if you made it clear to them that you are experiencing difficulty, you’re sick, you need to stay at home, you need someone to help you out with the grocery shopping, or you need someone to drive to your children’s school to pick them up, surely one of them, one of the family members, would be able to assist you. I am not suggesting that they would be on call for you 24 hours a day, seven days a week, but in those difficult moments you could call on them to help you out with the day-to-day activities that I have mentioned. Isn’t that right?
INTERPRETER: No, I have been in this life for a long time, and I know I cannot expect - I cannot rely on such help, even with a big family. And it is not because they don’t like me, but because everyone is very busy with their own lives, they all work, they all have maybe sometimes two, three jobs to do, they are all into mortgage they have to pay. And the children also don’t understand, and they have not been able to get over this. Every time they come to me crying, I must provide some kind of support and I am unable to. So, there have been many sleepless nights, and it’s been a very difficult life for me and my family. My children are always crying, they come to me, sometimes they see other children, yes, they get happy, they play, they meet at church, they spend some time together, but it’s not - it’s something that never goes away.”[56]
[56] Transcript, page 80, line 23 – page 81, line 32.
THE TRIBUNAL’S ASSESSMENT OF THE WITNESSES
The Tribunal found KSQQ to have little credibility as a witness, constructing his answers carefully around what appeared to be a preconceived narrative regarding demonstrations of remorse for his crimes and not fully answering questions when convenient to do so.
The reverse was true in relation to Mr FF, Mr FK, Ms ND and Ms GM, but none of them sought to defend KSQQ’s misconduct.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.

Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal’s consideration: The nature and seriousness of KSQQ’s conduct
Paragraph 8.1.1(1)
This paragraph states that, 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 197 A 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 reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
In essence:
(a)In his Statement of Facts and Issues in Contention[57] (SFIC), KSQQ accepts that his sexual offences against children are very serious and that his actions have undoubtedly caused significant harm to the victims and their family. He submits that he is fully remorseful for his actions and understands they were wrong.
(b)The Respondent’s Statement of Facts and Issues in Contention[58] (RSFIC) asserts that, because KSQQ’s criminal offending involved repeated crimes of a sexual nature against children, the nature and seriousness of KSQQ's conduct weighs heavily against revocation.
[57] Exhibit A1.
[58] Exhibit R1.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes, based on the evidence, that KSQQ’s conduct constitutes sexual crimes.
The Tribunal concludes, based on the evidence, that KSQQ’s conduct against Child Victim 1 and Child Victim 2 may constitute crimes of a violent nature against children.
The Tribunal concludes that KSQQ’s criminal conduct does not constitute ‘acts of family violence’. The evidence shows that KSQQ was considered a close friend of Child Victim 1 and Child Victim 2’s family, rather than a family member.
The Tribunal considers that this paragraph carries very strong and determinative weight in favour of affirming the delegate’s decision not to revoke the cancellation of KSQQ’s visa.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant as KSQQ has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is relevant as KSQQ has committed crimes against vulnerable members of the community. Child Victim 1 and Child Victim 2 were children throughout the duration of KSQQ’s criminal conduct against them. While paragraph 8.1.1.(1)(b)(ii) does not reference children,[59], it does not exclude them. Additionally, paragraph 8.5 of the Direction separately includes children in a group described as ‘vulnerable members of the community’.
[59] Paragraph 8.1.1.(1)(b)(ii) does reference the elderly and the disabled as exemplars of the vulnerable.
The Tribunal considers that Child Victim 1 and Child Victim 2 were vulnerable members of the community[60] throughout the duration of KSQQ’s criminal conduct against them and that KSQQ’s criminal conduct in relation to them would be considered to be serious by the Australian Government and the Australian community.
[60] Exhibit 1, page 54.
The Tribunal considers that this paragraph carries strong weight in favour of affirming the delegate’s decision of not to revoke the cancellation of KSQQ’s visa.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...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”. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of KSQQ’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant as the evidence does not disclose any criminal conduct by KSQQ while in immigration detention. KSQQ and relevant to the Tribunal’s assessment of the nature and seriousness of KSQQ’s conduct.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on KSQQ for:
(a)any violent offending that he may have committed against women or children,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
KSQQ was convicted on 20 June 2013 of a charge of ‘Exceed 0.08 alcohol per 100 ml of blood’, fined $500 and disqualified from driving for 7 months.
The Tribunal considers that this paragraph and KSQQ’s 20 June 2013 driving conviction carries moderate weight in favour of affirming the delegate’s decision to not to revoke the cancellation of KSQQ’s visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
KSQQ’s criminal history[61] makes clear the relatively high and sustained frequency of KSQQ’s sexual crimes against Child Victim 1 and Child Victim 2.
[61] G3.
Trend of increasing seriousness
His Honour Judge Gething’s sentencing decision[62] states that KSQQ’s offending was not isolated and that his convictions represent a wider pattern of conduct.
[62] G5, page 49.
The Tribunal considers that KSQQ’s sexual criminal conduct can be treated with equal seriousness throughout the period in question, rather than demonstrating a trend of increasing seriousness.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of KSQQ’s repeated offending.
His Honour Judge Gething’s sentencing decision[63] sets out in summary the significant and substantive emotional and psychological cost KSQQ’s criminal conduct imposed on Child Victim 1 and Child Victim 2 and their family.
[63] Annexure B.
The effects of KSQQ’s offending have also imposed significant costs – financial, emotional and social - on his family.
Lastly, KSQQ’s criminal conduct has imposed significant costs on the policing, judicial and jail systems in terms of money and resources expended.
It is clear from aggregating these perspectives that the cumulative effect of KSQQ’s repeated offending is substantial, significant in many of the lives of those affected and likely to be long-term.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether KSQQ has provided false or misleading information to the Respondent Minister’s Department, including by not disclosing criminal offending.
In the absence of evidence from KSQQ or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of KSQQ’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether KSQQ has re-offended since being formally warned about the consequences of further offending in terms of his visa status.
In the absence of evidence from KSQQ or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of KSQQ’s conduct.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of KSQQ’s conduct.
Tribunal’s finding: The nature and seriousness of KSQQ’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the totality of KSQQ’s unlawful conduct in Australia should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk KSQQ poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
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.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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 the most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk to the Australian community, the Tribunal has first considered the evidence and then the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.
The Respondent submits that:[64]
(a)KSQQ's repeated crimes of a sexual nature against children are very serious and any likelihood that they may be repeated is unacceptable; and
(b)the potential harm caused by future similar acts of criminal or other serious conduct committed by KSQQ could involve significant physical, financial and psychological harm to members of the Australian community.
[64] Respondent’s SFIC [28] – [29].
KSQQ’s SFIC contends:[65]
[65] KSQQ’s SFIC [37] – [39]
(a)KSQQ submits that he agrees his offending was of serious nature but states that he will not engage in further criminal or serious conduct.
(b)The Western Australian Parole Board found that KSQQ’s release would present an acceptable risk to the safety of the Australian community due to the following factors:
(i)KSQQ is assessed as being at low risk of re-offending.
(ii)KSQQ’s participation in voluntary programs which demonstrate a motivation and willingness to address his offending behaviour;
(iii)Although KSQQ’s limited English precluded a full treatment assessment, the 10 August 2022 prison report dated concluded that he presented low to moderate risk category;
(iv)The salutary impact of his imprisonment on KSQQ;
(v)KSQQ’s limited criminal history and no previous history of violence or sex offending;
(vi)KSQQ’s parole plan which included suitable accommodation, confirmed employment, community support, engagement with a private psychologist and family support;
(vii)KSQQ’s parole conditions of parole would further reduce the risk to the community’s safety.
Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were KSQQ to engage in further criminal or other serious conduct.
The Tribunal considers that the evidence presented before it demonstrates that the nature of the harm to both individuals and the Australian community arising from KSQQ’s past criminal conduct is significant, substantial and long-lasting.
In the absence of any significant evidence indicating otherwise, it is reasonable to assess that the result – and the nature of the resulting harm - would be the same if KSQQ engaged in further criminal or serious conduct in the future.
The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were KSQQ to engage in further criminal or other serious conduct.
The potential harm arising from a repeat of KSQQ’s criminal conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
The Tribunal finds that further future criminal conduct of the categories KSQQ has previously engaged in would result in material physical, psychological and financial harm to the Australian community.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence addressing the likelihood of KSQQ engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[66]
[66] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
“…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”
[68] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[67]

The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[68]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[67] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]-[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[69] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, also a finding that there was a risk of KSQQ re-offending.
[69] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [70]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis.)
[70] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].

Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[71]
“That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.”
[71] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by applying the reasoning in Sabharwal FC and Guo and assessing the likelihood that KSQQ might engage in further offending conduct, this Tribunal finds there is “a risk” or a likelihood that KSQQ will engage in further criminal or serious conduct.
The Tribunal does not have the benefit of an expert risk assessment to further assist its consideration of this issue.
It does have KSQQ’s Individual Management Plans[72] and the 5 October 2022 Parole Assessment[73] prepared by the Western Australian Department of Justice.
[72] G43, pages 44 and 45.
[73] SG2, pages 265 – 270.
A consideration of the risk or likelihood of KSQQ engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing so enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.
The 5 October 2022 Parole Assessment states that when KSQQ was assessed for placement in a sex-offending based treatment programme, he was deemed incapable of being assessed due to ‘limited English which precluded a full assessment of associated risk factors.[74]’
[74] SG2, page 266.
The Parole Assessment then reports that a partial assessment was done which assessed KSQQ with a level of static risk placing him in the low range of risk – but that his dynamic risk factors were unable to be assessed due to the language barrier. Despite this, the Parole Assessment concludes, without providing evidence, that KSQQ presents a low to moderate dynamic risk.
At page 4 of the Parole Assessment, more detail is provided:
“During the interview for the current report [KSQQ] took responsibility for his actions and expressed remorse, however presented as unable to comprehend and articulate why he chose to sexually abuse the victims. He did demonstrate an understanding of the long- term impact on the victims i.e. trauma and trust issues but failed to provide much depth. He recognises the offences would have significantly caused harm to the family unit, the victims and respective community. He denied any sexual interest in children. Given [KSQQ] has not been assessed, it is difficult to identify his risk factors.”[75]
[75] SG2, page 268.
On page 5 of the Parole Assessment, the following appears:
“[KSQQ] has protective factors, such as employment, accommodation and the support of family, friends, church community and cultural community whom appear pro-social role models.”[76]
[76] SG2, page 269.
The Tribunal observes that these static protective factors were also in existence during the period of KSQQ’s offending and did not appear to have prevented his criminal conduct.
The Tribunal further observes that KSQQ does not appear to have any dynamic risk management or protective factors in place.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should KSQQ commit further offences or engage in serious conduct both exists and is material.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of KSQQ’s visa.
Primary consideration 2: Family violence committed by the non-citizen.
Paragraph 8.2 of the Direction states:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4 of the Direction contains this definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Tribunal’s Consideration
The Respondent acknowledges that Child Victim 1 and Child Victim 2 are not members of KSQQ’s family and that consequently the necessary familial relationship is not made out.[77]
[77] Respondent’s SFIC, paragraph [32].
The Tribunal finds accordingly and considers that paragraph 8.2 is not enlivened.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen.
This consideration carries a neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
1Decision-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.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Respondent concisely summarises the evidence to be considered against paragraph 8.3:
(a)KSQQ has resided in Australia since September 2008;[78]
(b)KSQQ has family links to both Australian citizens or people who have the right to remain in Australia indefinitely; including his wife whom he married in 2011)[79] , his three minor children [80] his mother; seven siblings; and extended family members[81];
(c)KSQQ’s social links to the Australian community, as reflected in the statements and character references before the Tribunal;[82] and
(d)KSQQ’s positive contribution to the Australian community, noting that he was employed as a sheet metal worker for several years prior to his incarceration.[83]
[78] G46, page 174.
[79] G48, page 179.
[80] G47, pages 175-177.
[81] G8, page 89 and KSQQ’s SFIC,[55].
[82] G11 – G42.
[83] G8, page 93 and G5, page 53. KSQQ’s SFIC,[63] - [64].
The Respondent paraphrases the Direction to emphasise[84] that less weight should be given to this primary consideration because KSQQ did not reside in Australia during his formative years and began offending shortly after his arrival in Australia.
[84] Respondent’s SFIC, [34].
Tribunal’s Consideration
The Tribunal is required to give more weight to a non-citizen’s ties to their children or children who are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely, such as occurs in this matter.
The Tribunal must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community, have regard to the length of time they have resided in the Australian community, whether they have been resident here during their formative years, whether they have contributed positively to the Australian community and correspondingly less weight should be given where they were not resident in Australia during their formative years or began offending soon after arriving in Australia.
While weight must be given to KSQQ’s ties to Australia as described above, his family, the reverse must be addressed by the fact – as revealed in Judge Gething’s sentencing decision - that he commenced offending shortly after arriving (approximately 5 months).
Conclusion: Primary consideration 3: the strength, nature and duration of ties to Australia.
This consideration carries a moderate but not determinative degree of weight towards setting aside the delegate’s decision to not revoke the cancellation of KSQQ’s visa.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided.
If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.[85]
[85] The Direction, para 8.3(3).
In considering the best interests of the child, the Direction requires the following factors at paragraph 8.4(4) to 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.
The Direction requires that the Tribunal determine whether non-revocation under section 501CA is, or is not, in the best interests of each child in Australia who will be affected by the decision.
The evidence and submissions before the Tribunal identifies that KSQQ and Ms GM have three minor children who the Tribunal considers are relevant for the assessment of this primary consideration:
(a)Child L, a daughter born in 2013.
(b)Child I, a son born in 2015.
(c)Child S, a daughter born in 2018.
The Respondent contends that:
(a)prior to KSQQ's incarceration and detention, he and Ms GM shared parenting responsibilities in relation to the children.[86]
(b)in KSQQ’s absence while incarcerated and detained, Ms GM gave evidence that she Ms GM is struggling financially and emotionally to care for the children.[87]
(c)KSQQ appears to continue to have meaningful contact with his children, speaking to them daily.[88]
(d)However, the weight to be attributed to this primary consideration should be tempered by the impact that KSQQ’s prior conduct, once discovered by his children, and his likely future conduct (given that there remains a real risk of recidivism) will have on them (paragraph 8.4(4)(c)).
[86] G11.
[87] G11, page 114; Transcript pages 76-88.
[88] G8, page 80.
KSQQ’s SFIC relevantly contends that:
(a)The children have displayed anxiety due to their father’s absence because of his imprisonment and detention. The children have been emotionally and mentally affected. The children have asked on multiple occasions when ‘Dad’ [KSQQ] would return home.[89]
(b)Ms GM has been the primary carer of the children and she has indicated that she needs the support of the children’s father [KSQQ] to raise them and care for them. Ms GM has indicated that the children long for the care of both parents.[90]
(c)KSQQ was the only income earner, and he supported his family substantially with all their needs and wants. Ms GM has never worked as she must care for the young children has been relying on welfare payments to support the family.[91]
[89] KSQQ’s SFIC [74].
[90] KSQQ’s SFIC [79].
[91] KSQQ’s SFIC [80].
Tribunal’s Consideration
The Direction requires the Tribunal to treat the best interests of these minor children as a primary consideration.
The Tribunal will frame its consideration in terms of paragraph 8.4(4), acknowledging the delineation between each of minor children required by paragraph 8.4(3).
Paragraph 8.4(3) of the Direction states:
“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.”
Paragraph 8.4(4)(a)
In relation to each of Child L, Child I and Child S, the evidence provided comes largely from the parties’ respective submissions and isolated correspondence from the children.[92] Despite long periods of KSQQ’s absence, meaningful contact between KSQQ and the children appears to occur regularly.
[92] G13 and Exhibits A7; A9.
Paragraph 8.4(4)(b)
KSQQ’s testimony, his statement and his wife’s testimony provide evidence that KSQQ’s return to his family would offer an opportunity for him provide positive financial, emotional and psychological support to their three minor children until the children turn 18.
Paragraph 8.4(4)(c)
The Tribunal considers, in the absence of specific evidence or submissions, that it is likely the case that KSQQ’s prior conduct and the minor children learning of this conduct it would likely have a negative impact on each of the minor children.
Paragraph 8.4(4)(d)
Based on both parties’ submissions, it is likely that separation between KSQQ and Child L, Child I and Child S would have a negative effect, especially in emotional, psychological and financial terms.
Paragraph 8.4(4)(e)
Based on the evidence before it, the Tribunal considers that Ms GM currently fulfils a parental role in relation to Child L, Child I and Child S.
Paragraph 8.4(4)(f)
There is no evidence of the minor children’s views before the Tribunal aside from examples of their correspondence.[93]
[93] G13.
Paragraph 8.4(4)(g)
There is no clear and unambiguous evidence before the Tribunal on this point. The Tribunal does have concerns about the unquantified risk that KSQQ’s sexual offending may find a focus on his children if he is returned to the community.
Paragraph 8.4(4)(h)
There is no evidence before the Tribunal of the minor children having suffered or experienced physical or emotional trauma arising from KSQQ’s conduct.
Tribunal’s findings: Best interests of minor children in Australia affected by the decision.
The Tribunal finds, on balance, that setting aside the delegate’s decision is in the best interests of Child L, Child I and Child S.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration carries some weight in favour of setting aside the delegate’s decision to cancel KSQQ’s visa.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5(1) of the Direction provides:
“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.”

In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a 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 in question are 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 because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[94]
[94] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[95]
[95] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[96]
[96]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2Non-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.
3The 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 risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally 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. 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.
6Decision-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) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has found that KSQQ has committed crimes against children. Paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(b)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
(c)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally 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.
(d)The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen.
(f)In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(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 risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(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."
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes,
Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s Consideration
KSQQ held a Class XB Subclass 200 refugee visa. This is a permanent visa allowing the visa holder to remain in Australia indefinitely.[97]
[97] Migration Regulations 1994 (Cth), reg 200.511.
This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.
KSQQ has lived in Australia since he was 24 and began offending relatively soon after arriving. KSQQ has made some contributions to the Australian community as a worker and as a volunteer.
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. KSQQ has lived in Australia for approximately 40% of his life, arriving as an adult and spending 10 years in the community before going to prison and subsequently immigration detention.
The Tribunal has also found KSQQ’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a
non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that KSQQ poses a real and substantive risk of
re-offending.
The Tribunal is satisfied that KSQQ has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of KSQQ’s visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
1Decision-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 noncitizen.
2A 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.
3International 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.
9.1.1 Non-citizens covered by a protection finding
1Where 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.
2Section 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.
3Decision-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 Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA 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.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Applying Paragraph 9.1 (relevantly, Sub-Paragraphs 9.1(1), 9.1.2(1) and 9.1.2(3)), the following points are relevant to the Tribunal’s consideration on this element of the Direction:
(a)Both KSQQ, in his SFIC[98], and the Respondent in theirs[99] submit that KSQQ has made claims that may engage and enliven Australia’s non-refoulement obligations under Australian domestic law.[100]
(b)Applying Plaintiff M1/2021,[101] the Tribunal should consider KSQQ's claims and ‘read, identify, understand and evaluate’ these claims. In doing so, it should also consider whether the claims or the alleged facts underpinning the claims establish another reason why the visa cancellation decision should be revoked and whether they support any other matter relevant to the Tribunal’s exercise of the discretion under the Direction.
(c)One potential outcome of this consideration, as described in Plaintiff M1/2021, is to defer assessment of whether KSQQ is owed non-refoulement obligations pending his application for a protection visa.
(d)The Tribunal notes that there is no evidence before it to suggest that KSQQ has applied or is applying for a protection visa.
[98] KSQQ’s SFIC [86].
[99] Respondent’s SFIC [43].
[100] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 1, [30] (Plaintiff M1/2021); Respondent SFIC [53].
[101] Op cit, [24]-[25] and [30].
KSQQ’s Claims
Following from the above, the Tribunal has sought to identify and consider KSQQ’s non-refoulement obligation claims.
The factors that are the foundations of KSQQ’s claims are:
(a)his fear that he will be killed if returned to Burundi because of his ethnicity[102];
(b)his grandparents and father were allegedly killed because of the conflict in Burundi[103] and related ethnic conflict in a Tanzanian refugee camp;[104]
(c)The people who allegedly killed his father promised to kill other members of the family.[105]
[102] KSQQ’s SFIC, [87] – [88] and Applicant’s Closing Submission [121].
[103] KSQQ’s SFIC [89].
[104] G10, pages 110-111.
[105] G8, page 54, Personal Circumstances Form addressing the question whether KSQQ had any concerns or fears about what would happen to him if he were to return to his country of citizenship.
Considering each of these in turn:
(a)Ethnicity: This cannot be assessed due to a lack of evidence before the Tribunal about KSQQ’s ethnicity.
(b)Current conflict in Burundi and security in Tanzanian refugee camps: The Tribunal has considered the Country Reports prepared by the Department of Foreign Affairs and Trade that are available. It appears from reading these that while Burundi has, in the recent historic past, suffered significant internal conflict and fighting, the situation has resolved to an extent.
(c)The Tribunal observes that KSQQ maintains he is a Burundian citizen and that the Respondent accepts this in its Statements of Facts, Issues and Contentions. The Tribunal also observes that in oral testimony, KSQQ acknowledges that he was born in Tanzania.[106]
(d)The Tribunal observes that KSQQ returned to Tanzania in 2011 to marry Ms GM.[107]
[106] See oral evidence above and G10, page 110-111. Also see “KSQQ’s fear for his safety if returned to his country of citizenship” in [39] where in testimony KSQQ indicated that there was debate amongst Tanzanian authorities as to his citizenship.
[107] G10, page 101.

Due to insufficiency of evidence before it, the Tribunal is unable to reach a finding in relation to KSQQ’s non-refoulement claim (or his country of citizenship). The Tribunal consequently finds that this other consideration has neutral weight.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal considers that this Other Consideration (a) has neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-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;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant’s written submissions
KSQQ’s SFIC frames the issues attendant to this consideration in paragraphs [94] to [97]:
“[94]     If the Applicant is removed from Australia to Burundi, he would face enormous challenges to establish himself.
[95]      The Applicant has no ties to Burundi, he has no relatives or social support at all.
[96]     The Applicant only completed schooling equivalent to primary school education in Tanzania.
[97]     The Applicant would face both financial and emotional constraints if he is to be returned.”
The Respondent’s written submissions
The Respondent concedes that the evidence suggests that KSQQ is likely to have difficulty in establishing himself and maintaining basic living standards if removed to Burundi and makes the following submissions on this point:[108]
(a)KSQQ has never resided in Burundi - whilst it is his country of origin, he was born in a Tanzanian refugee camp.
(b)has no family or social support available to him in Burundi and has one sister living in Tanzania.
(c)would be significantly adversely affected by being removed from his support network in Australia, including his wife and children.
(d)KSQQ is relatively young (39 years of age), with no diagnosed medical or psychological conditions, and no language or cultural barriers for him to overcome, having left Tanzania at the age of 24.
[108] Respondent’s SFIC, [51]-[52].
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that KSQQ, if removed from Australia to Burundi (or possibly Tanzania), will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
KSQQ is 39 years old.
The evidence before the Tribunal indicates that KSQQ is healthy and, diagnostically, does not appear to suffer from any chronic physical or mental health issue that would countervail against him being returned to Burundi.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that KSQQ, based on his oral testimony and the other evidence, would face few, if any linguistic difficulties if he returned to Burundi.
However, the Tribunal also considers that KSQQ will face some cultural barriers in as much as he would be returning to Burundi from a life recently set amongst Australian culture which commenced when he was 26 years old.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that KSQQ would at best have access to same level of social and economic support as other Burundian citizens and more likely less as he appears to lack a family network or support structure in Burundi.
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that KSQQ, if removed from Australia to Burundi, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that KSQQ would probably face substantial emotional, practical, financial and medical hardship if he was returned to Burundi.
This hardship would initially be aggravated by the absence of significant relationships with anyone in Burundi and the likely difficulties he would face in re-establishing himself there.
However, KSQQ’s age and health should enable him to prevail over these factors over the medium to longer terms, especially if his Australian-based family provide support as was suggested in his brothers’ oral testimony.
This consideration carries some weight in favour of setting aside of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
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.
Tribunal finding: Other Consideration (c): Impact on victims.
There is no relevant evidence before the Tribunal addressing the impact this Tribunal’s decision will have on Child Victim 1 and Child Victim 2. Consequently, the Tribunal finds that this other consideration is not relevant and weighs neutrally.
Other consideration (d) Impact on Australian business interests if KSQQ cannot remain here.
Paragraph 9.4 (1) compels an assessment of KSQQ’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.
There is no evidence before the Tribunal that KSQQ’s absence from his employment or his removal from Australia will compromise the delivery of a major project or an important service.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if KSQQ cannot remain here.
The Tribunal finds that Other Consideration (d) is not relevant and has a neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration weighs neutrally.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries some weight in favour of setting aside of the delegate’s decision under review.
Other Consideration (c) - impact on victims:
·This consideration is not relevant and weighs neutrally.
Other Consideration (d) – Impacts on Australian business interests :
·This consideration is not relevant and weighs neutrally.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[109]
[109] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, KSQQ does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of KSQQ’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration carries a neutral weight.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration carries a moderate but not determinative degree of weight towards setting aside the delegate’s decision to not revoke the cancellation of KSQQ’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision :
·This consideration carries some weight in favour of setting aside the delegate’s decision to not revoke the cancellation ofKSQQ’s visa.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of KSQQ’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations and the other considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of KSQQ’s visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision dated 9 January 2023 to not revoke the cancellation of KSQQ’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

I certify that the preceding two hundred and nine paragraphs (209) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...............[SGD]....................
Associate
Dated: 30 May 2023

Date of hearing: 14 & 15 March 2023

Solicitor for the Applicant:
Mr Kristopher of Savannah Law (Savannah Legal Pty Ltd)

Counsel for the Respondent: Mr Kaplan, instructed by Ms Campbell of HWL Ebsworth Lawyers
ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1-G51, paged 1-252)

R

Various

31 Jan 2023

Respondent Material

R1

Respondent’s Statement of Facts, Issues and Contentions (Paged 1-14)

R

6 Mar 2023

6 Mar 2023

R2

Supplementary G-Documents (SG1-SG4, paged 1-595)

R

Various

6 Mar 2023

R3

Respondent’s closing submissions

R

28 March 2023

28 March 2023

Applicant Material

A1

Applicant’s Statement of Facts, Issues and Contentions (Paged 1-14)

A

Undated

20 Feb 2023

A2

Collated Photographs (Paged 1-56)

A

Various

20 Feb 2023

A3

Statutory declaration of Mr FK (Paged 1-2)

A

20 Feb 2023

20 Feb 2023

A4

Statutory Declaration of Ms GM (Paged 1-3)

A

20 Feb 2023

20 Feb 2023

A5

Statutory Declaration of Mr FF (Paged 1-2)

A

20 Feb 2023

20 Feb 2023

A6

Statutory Declaration of Ms ND (Paged 1-2)

A

20 Feb 2023

20 Feb 2023

A7

Letter from Child L

A

Undated

20 Feb 2023

A8

Unnamed Handwritten Letter

A

Undated

20 Feb 2023

A9

Second Letter from Child L

A

22 May 2022

20 Feb 2023

A10

Photo of Ms ND’s Passport

A

20 Oct 2022

20 Feb 2023

A11

Photo of Mr FK’s Passport

A

15 Jun 2016

20 Feb 2023

A12

Photo of Mr FF’s Passport

A

26 Oct 2015

20 Feb 2023

A13

Applicant’s closing submissions and certificates

A

Various

23 March 2023

A14

Applicant’s reply to Respondent’s closing submissions

A

29 March 2023

29 March 2023

Tendered Cases

A15

CCGW and Minister for Immigration and Border Protection (Migration) [2017] AAT 1731

A

4 Oct 2017

20 Feb 2023

A16

Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316

A

17 May 2016

20 Feb 2023

A17

MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416

A

7 Mar 2018

20 Feb 2023

Court	Date	Offence	Result
Perth District Court of Western Australia	26/02/2018	Sexual Penetration of a Child Under 13	[Counts 1] Imprisonment: 12 months Concurrent from 19 February 2018
Perth District Court of Western Australia	26/02/2018	Indecent Dealings with Child Under 13 Years	[Counts 1] Imprisonment: 12 months Concurrent from 19 February 2018
Perth District Court of Western Australia	26/02/2018	Sexual Penetration of a Child Under 13	[Counts 8] Imprisonment: 3 years, 8 months Concurrent from 19 February 2018
Perth District Court of Western Australia	26/02/2018	Sexual Penetration of a Child Under 13	[Counts 1] Imprisonment: 18 months Concurrent from 19 February 2018
Perth District Court of Western Australia	26/02/2018	Indecent Dealings with Child Under 13 Years	[Counts 1] Imprisonment: 3 years Cumulative from 19 February 2018
Armadale Magistrates Court	20/06/2013	Exceed 0.08g alcohol per 100ml of blood	[Counts 1] Fine: $550 Disqualified: 7 months

Date of hearing:	14 & 15 March 2023
Solicitor for the Applicant:	Mr Kristopher of Savannah Law (Savannah Legal Pty Ltd)
Counsel for the Respondent:	Mr Kaplan, instructed by Ms Campbell of HWL Ebsworth Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G51, paged 1-252)	R	Various	31 Jan 2023
Respondent Material
R1	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-14)	R	6 Mar 2023	6 Mar 2023
R2	Supplementary G-Documents (SG1-SG4, paged 1-595)	R	Various	6 Mar 2023
R3	Respondent’s closing submissions	R	28 March 2023	28 March 2023
Applicant Material
A1	Applicant’s Statement of Facts, Issues and Contentions (Paged 1-14)	A	Undated	20 Feb 2023
A2	Collated Photographs (Paged 1-56)	A	Various	20 Feb 2023
A3	Statutory declaration of Mr FK (Paged 1-2)	A	20 Feb 2023	20 Feb 2023
A4	Statutory Declaration of Ms GM (Paged 1-3)	A	20 Feb 2023	20 Feb 2023
A5	Statutory Declaration of Mr FF (Paged 1-2)	A	20 Feb 2023	20 Feb 2023
A6	Statutory Declaration of Ms ND (Paged 1-2)	A	20 Feb 2023	20 Feb 2023
A7	Letter from Child L	A	Undated	20 Feb 2023
A8	Unnamed Handwritten Letter	A	Undated	20 Feb 2023
A9	Second Letter from Child L	A	22 May 2022	20 Feb 2023
A10	Photo of Ms ND’s Passport	A	20 Oct 2022	20 Feb 2023
A11	Photo of Mr FK’s Passport	A	15 Jun 2016	20 Feb 2023
A12	Photo of Mr FF’s Passport	A	26 Oct 2015	20 Feb 2023
A13	Applicant’s closing submissions and certificates	A	Various	23 March 2023
A14	Applicant’s reply to Respondent’s closing submissions	A	29 March 2023	29 March 2023
Tendered Cases
A15	CCGW and Minister for Immigration and Border Protection (Migration) [2017] AAT 1731	A	4 Oct 2017	20 Feb 2023
A16	Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316	A	17 May 2016	20 Feb 2023
A17	MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416	A	7 Mar 2018	20 Feb 2023