LLYW and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 3174

LLYW and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3174 (29 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5955
Re:LLYW
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member, K Raif
Date:29 September 2022
Place:Sydney

The Tribunal sets aside the reviewable decision and substitutes a decision that the mandatory cancellation of the Class XD Subclass 785 Temporary Protection visa is revoked.
..................................[sgd]......................................
Senior Member, K Raif
Catchwords
MIGRATION – mandatory cancellation of Class XD Subclass 785 Temporary Protection visa – where visa was mandatorily cancelled under s 501(3A) because applicant did not pass character test– substantial criminal record – aggravated sexual intercourse – indecent assault – Ministerial Direction No. 90 – other reasons why original decision should be revoked – protection of the Australian community – whether conduct engaged in constituted family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations - international non-refoulement obligations – extent of impediments if removed – impact on victims – links to Australian community – other factors – possibility of indefinite detention – decision under review set aside and substituted – mandatory cancellation of the temporary protection visa revoked
Legislation
Migration Act 1958 (Cth)
Cases
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 90 – 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
REASONS FOR DECISION
Senior Member, K Raif
29 September 2022

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancellation of a Class XD Subclass 785 Temporary Protection visa held by the applicant.
The applicant was born in Myanmar in February 1991. He travelled to Christmas Island in August 2013 as an unauthorised maritime arrival. The applicant was granted the Temporary Protection visa on 17 April 2018.
In November 2019 the applicant was convicted of the offences described below. In February 2020 the applicant’s visa was mandatorily cancelled under section 501(3A) of the MigrationAct1958 (the Act) because it was determined that the applicant did not pass the character test. The applicant was invited, and made representations about the revocation of the decision to cancel his visa. On 19 July 2022, a decision was made under subsection 501CA(4) of the Act not to revoke the mandatory cancellation decision. The applicant is seeking review of that decision
It is not in dispute that the applicant had made representations about the cancellation of his visa. The issues before the Tribunal are:
(i)does the applicant pass the character test, as defined by section 501 of the Act and if not,
(ii)is there another reason why the original decision should be revoked.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be set aside.
RELEVANT LAW
Section 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) (paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA(3) of the Act provides that as soon as practicable after making a decision under section 501(3A) of the Act, the Minister must, among other things, notify the person of the decision, provide particulars of relevant information, and invite the person to make representations to the Minister, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Section 501CA(4) of the Act allows for a revocation of a decision under section 501(3A) of the Act and relevantly states as follows:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ’character test’ is defined in section 501(6) of the Act. Relevantly, subsection 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
Subsection 501(7)(c) of the Act relevantly provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
On 15 April 2021 the Minister issued Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) under section 499 of the Act. Direction 90 is binding on the Tribunal in performing its functions, or exercising powers under section 501 of the Act.
Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at clause 5.2(2) of Direction 90 states that:
‘Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations which are set out in clause 8 of Part 2 of Direction 90 are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the best interests of minor children in Australia; and
4)expectations of the Australian community.
15.The other considerations which are set out in clause 9(1) of Direction 90 are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community including:
-strength, nature and duration of ties to Australia;
-impact on Australian business interests.
According to clause 7(2) and 7(3) of Direction 90, decision-makers should ‘generally’ give greater weight to primary considerations than the other considerations. Further, one primary consideration may outweigh other primary considerations.
In this case, it is not in dispute that the applicant has made representations about the revocation of the cancellation of his visa. The requirements of subsection 501CA(4)(a) of the Act are met.
Does the applicant pass the character test?
The character test is defined in section 501(6) of the Act. Relevantly, subsection 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in section 501(7) of the Act. Subsection 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the New South Wales (NSW) Police Force - Criminal history report (NSW Police Report), which shows that on 4 January 2018 the applicant was convicted of:
(a)aggravated sexual intercourse person >= 10 and <= 14 years and
(b)indecent assault person under 16 years of age.
The applicant was sentenced to 6 years imprisonment with a non-parole period of 3 year and 9 months.
The Tribunal finds, having regard to the above, that the applicant has been convicted of offences and sentenced to a term of imprisonment of 12 months or more. The Tribunal also finds that the applicant has a substantial criminal record as defined in subsection 501(7)(c) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. The requirements of subsection 501CA(4)(b) of the Act are not met.
Is there another reason why the original decision should be revoked?
The applicant made representations seeking the revocation of the cancellation decision. The Tribunal has had regard to the applicant’s representations, as well as his submissions and evidence to the delegate, in addition to the evidence subsequently provided to the Tribunal by the applicant and the respondent.
In his evidence to the Tribunal the applicant concedes that there is substantial offending but refers to the best interests of his wife and daughter, his links to Australia, his recognition of the seriousness of the offending conduct and the real prospect of indefinite detention if the cancellation is not revoked.
The respondent refers to the seriousness of the offences, which are relevant to several primary considerations (seriousness of the offending, family violence and the expectations of the community). The respondent submits that greater weight should be given to these considerations.
The Tribunal’s considerations are set out below with regard to Direction 90.
Primary considerations
Protection of the Australian Community
Sub-clause 8.1 of Direction 90 provides as follows:
Protection of the Australian community
1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….Australian community.
2) Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Sub-clause 8.1.1 of the Direction states that violent crimes and acts of family violence are viewed very seriously by the Australian government in the Australian community.
In considering the nature and seriousness of the applicant’s conduct to date, the Tribunal has had regard to the information in the NSW Police Report. The sentencing remarks in the District Court indicate that the facts are agreed.
Around December 2017 to January 2018, the victim and her sister lived with their mother while their father visited Turkey. There was an incident as a result, of which the victim and her sister were removed from their mother and placed into the care of their cousin (the spouse of the applicant).
It is recorded that on one occasion the applicant and the victim travelled to a park. The applicant placed his arm around the victim’s head, kissed her on the lips and said ‘I love you’. On the following day, the applicant and the victim travelled to a supermarket. The victim was seated at the back of the car, and the applicant sat next to her. He removed the victim’s clothes until she was naked and removed his own clothing, exposing his penis. He said ‘look what I have for you. I want to have sex with you’. The applicant put his hands on the victim’s breasts and squeezed them. The applicant then had penile/vaginal intercourse with the victim; he was not wearing a condom during the intercourse. During the intercourse, the applicant continued to tell the victim ‘I love you, don’t tell your father or we will get in trouble’ and he asked the victim to not tell his wife.
In February 2018, the victim’s family and the applicant with his wife attended Brighton beach. The applicant was observed placing his hand on his wife’s back and the victim was observed placing her hand on the top of his hand. It is stated that their bodies were observed as almost touching during the day.
In May 2018, when the applicant attended the victim’s home, he gave the victim a piece of paper with his Facebook username and password. Later in May 2018 the victim found a piece of paper in her bed which read ‘we should not love in a wrong way, don’t tell your dad because we will both get in trouble’.
In May 2018, the child attended a police station to report the incidents to the police. The applicant was arrested on 2 July 2018. The applicant pleaded guilty to the offence of aggravated sexual intercourse with a person aged between 12 and 14 and he was also found guilty of the charge of indecent assault.
In oral evidence to the Tribunal, the applicant concedes that when he was first arrested, he provided untruthful information to the police, denying that he had intercourse with the victim and stating that he was ‘forced’ to kiss her. The applicant explained that he was forced by the ‘evil whispering’ and not by the victim and he referred to his conduct as ‘disgusting’. The applicant denies that the offending was pre-planned.
Paragraph 8.1.1 of Direction 90 provides that sexual crimes are considered very serious. Further, crimes committed against vulnerable members of the community are also considered serious. Direction 90 refers to the vulnerable members as the elderly and the disabled but in the Tribunal’s view, that list is not meant to be exhaustive and the Tribunal finds that minor children can also be considered to be vulnerable members of the community.
The fact that the applicant has been sentenced to 6 years of imprisonment reflects the serious nature of the offences and in his sentencing remarks Judge Abadee refers to the offending being ‘at the mid-range of objective seriousness’.
In his submission to the Tribunal the applicant notes that when sentencing him, the court referred to mitigating factors, such as absence of force applied, lack of threats, absence of grooming preceding the offence and the fact that there was only a single episode of child sexual assault. The Tribunal accepts that evidence, and acknowledges that the sentencing judge recognised these as factors relevant in assessing the seriousness of the offence. However, in accordance with Direction 90, the Tribunal considers an offence of sexual nature, and in particular in relation to a young child, to be a very serious one, even if no force was used, if there was no grooming and it was ‘only’ a single incident.
The Tribunal is of the view that in this case, the offending was particularly abhorrent because the child at the time was taken away from her mother and her father was overseas, the child was in the care and custody of the applicant and had no protection of other adults. The applicant would have been well-aware of these circumstances and used these to his advantage.
The Tribunal finds that the applicant’s criminal conduct to date has been very serious.
The Tribunal has considered the risk to the community, should the applicant reoffend. In making this assessment, the Tribunal has considered the risk of the applicant reoffending.
In oral evidence, the applicant acknowledges his remorse and regret for his offending, which he called ‘disgusting’ and he states that he feels sorry for his victim. He expressed empathy for the victim. The applicant states that the offending is not an indication of his character and he will never hurt anyone again. The applicant states that he has learned the laws of Australia and he refers to his desire to remain in Australia and with his family. The applicant refers to his mental health, post-traumatic stress disorder (PTSD) and the loss of his family members in Burma due to ethnic cleansing. The applicant states that his mental health had deteriorated in detention and following the events that occurred in Burma in 2021. The applicant refers to his wife’s health issues, including schizophrenia, intellectual disability and, for a time, postnatal depression. The applicant refers to the hardship experienced by his daughter, growing up without a father.
The applicant states that he has learned from his actions and is now more cautious and more aware and ‘has learned the lesson’ so it is impossible for him to do that again. The applicant stated that it is the harsh punishment and the deprivation of his family that helped him recognise that his conduct was wrong. The applicant’s comments suggest that he is more concerned about the impact of the incarceration upon himself than the impact of his conduct upon the child.
The Tribunal has had regard to the sentencing remarks of Judge Abadee of the District Court at Parramatta. The sentencing remarks set out the applicant’s comments (which appear to have been made during his initial police interview) in relation to the offending described earlier. The applicant is reported to have stated at the time that the victim fell in love with him and used to touch him, she asked him to kiss her and said that she wanted to have a baby with him. The applicant suggested that when they were in the car together, the victim would take her clothes off voluntarily and on the one occasion when he touched her breasts (while she was clothed), the applicant suggested this was initiated by the victim who placed his hand on her breast. The applicant denied having sexual intercourse and said that he was ‘controlled’ by the victim who kissed him but he did not kiss her back. The applicant admits in his evidence to the Tribunal that he lied in the police interview. His comments suggest that at least at the time shortly after the offending conduct took place, the applicant had very little insight into his behaviour. However, the Tribunal acknowledges that Judge Abadee found the applicant to be remorseful for his conduct and that was also the view expressed in the presentencing report. Ultimately, having regard to the applicant’s stated remorse, the absence of other offending, the evidence of the psychologist and other matters, Judge Abadee found that the applicant did not have strong prospects of rehabilitation but only barely reasonable prospects.
Before the applicant was sentenced, he provided to the court evidence concerning his past experience in Burma. There is reference to PTSD, flashbacks, nightmares and some psychotic symptoms linked to the circumstances of his past persecution in Burma. However, Judge Abadee was not satisfied that the applicant’s mental health had been a contributor to the offending conduct.
The Tribunal has had regard to the applicant’s pre-release report, prepared by Ms Cremer, a senior community corrections officer, dated 1 December 2021. It is stated that the applicant does not deny that he committed the offence and he is reported to be deeply ashamed of his behaviour, which he attributed to poor mental health. It is stated that the applicant was unable to articulate any insight into the impact of his offending behaviour on the victim and focused on the sense of shame he felt for committing the offence, but he did not attempt to place any blame on the victim or deny the sole responsibility for the offending. It is stated there has been no misconduct while the applicant was in detention and he expressed willingness to undertake intervention (the applicant told the Tribunal he was not eligible to undertake sex offender courses while in prison).

Case Notes prepared by the NSW Department of Corrective Services have been provided before the Tribunal. One report, dated 22 October 2021, sets out the information obtained in a telephone conversation with the applicant. It is recorded that the applicant linked his offending to his mental state and he stated that ‘the evil forces had gotten inside his head and made him act this way’. When asked how he would control these external forces, it is noted that the applicant was not able to articulate any insight or understanding of the risk factors or strategies to manage these. It is noted that the applicant did not have any specific intervention around sexual offending. The applicant has reported to feeling ashamed of his behaviour towards the victim and it is stated that the had demonstrated insight into the impact on the victim and understanding the long-term impact on her.
In his written submission to the Tribunal, the applicant states that he had completed various courses while in detention and he presented to the Tribunal evidence of courses he completed. It is notable, in the Tribunal’s view, that these courses were of quite short duration and were completed recently. The applicant submits that he had been released upon expiry of the non-parole period, which is an indication that he understands the severity of his actions. The Tribunal acknowledges that the applicant had been granted parole, albeit with strict conditions if he is to reside in the community. The Tribunal also acknowledges that, according to the report from the Corrective Services, the applicant did not have any intervention around sexual offending.
The applicant told the Tribunal that he feels empathy for the victim. However, he also seems to suggest in oral evidence that he recognised the error of his conduct because of the penalty he had been given. As noted above, the applicant’s appreciation of his conduct appears to be through the impact it has had on him, rather than the victim.
The Tribunal accepts that some years passed since the offending contact and there is no evidence of subsequent convictions or of any other offensive behaviour. However, the Tribunal is mindful that the applicant has been in detention since the convictions, first in criminal and later immigration detention, where the opportunity for sexual offending would have been very limited or, likely, non-existent. Thus, the Tribunal does not accept that the absence of any offending conduct since the conviction and the applicant’s good conduct during his incarceration can be taken as probative evidence that the applicant will not reoffend.
The applicant submits in his evidence to the Tribunal that he understands the impact of his conduct, that he is keen to reintegrate into the society as a ‘respectable and decent man’ and the risk of reoffending is not an unacceptable risk. The Tribunal is prepared to accept that the applicant does not wish to reoffend and that his preference is to be a useful and respectable member of the community. The Tribunal is also mindful, however, that since the offending conduct, the applicant has had very limited engagement with rehabilitation programs, has had extremely limited intervention regarding sexual offending, had fairly limited counselling for his mental health (to the extent he claims it had contributed to the conduct). The applicant has not had the same opportunities for offending as he would have, if he is to be released into the community, particularly once the strict parole conditions end.
There is very little probative evidence before the Tribunal to indicate that the applicant has reformed. The Tribunal finds that if the applicant was to reoffend, the risk to the Australian community would be significant, given the potential seriousness of the offences and the impact of such offences on victims. The Tribunal cannot conclude that the risk of reoffending has been removed or even significantly reduced, given the absence of the applicant’s meaningful engagement in sexual offending rehabilitation programs. The Tribunal concludes that such risk remains, even if it is not significant.
The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
Clause 4(1) of Direction 90 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples given in that provision include sexual assault or other sexually abusive behaviour.
The victim is a relative of the applicant’s spouse. At the time when the offending conduct took place, she was living with the applicant and his wife at the same house and was, at least temporarily at that time, a member of the applicant’s household. The child was in the applicant’s care and under his control and direction as a responsible adult. The Tribunal is of the view that the child can be considered a family member of the applicant at the time the offences were committed. The offence involved sexual assault against that child. The Tribunal finds that the conduct engaged in constitutes family violence.
In considering the seriousness of the family violence engaged in by the applicant, the Tribunal has had regard to the factors set out in paragraph 8.2(3) of Direction 90. There is no evidence before the Tribunal to indicate the family violence offending occurred frequently. The applicant has not received any warning previously and there is no evidence of repeated behaviour. It is unclear if the applicant genuinely understands the impact of his behaviour.
The Tribunal finds that this factor weighs against the revocation.
The best interests of minor children in Australia
The applicant has a minor child in Australia and he provided to the Tribunal his daughter’s birth certificate. In his submissions to the delegate and the Tribunal, the applicant states that his wife has mental health issues (he refers to schizophrenia and intellectual disorder and had experienced postnatal depression) and he provided to the Tribunal several medical reports relating to his spouse. The applicant states that his daughter needs his ’emotional, supportive fatherhood bond, and is in need of his care’. The applicant states that when his daughter grows up, she will be in a ‘desperate situation’ and will be an orphan. The applicant states that he needs to care for his child, as well as his wife who is on medication.
As noted above, there is before the Tribunal a statement from the applicant’s wife, who states that she relies on the applicant to support her and their daughter. In oral evidence, she told the Tribunal that while the applicant was incarcerated, her brother looked after her and their daughter, helped her with shopping and took their daughter out to play. Significantly, the applicant also told the Tribunal that he has had no concern with his wife caring for his daughter (other than the child’s schooling in the future).
The Tribunal accepts that the applicant provided physical, emotional and financial support to his daughter before his incarceration and cared for his daughter when his partner was in hospital with postnatal depression. The evidence before the Tribunal is that the applicant maintains regular contact with his daughter during his immigration detention. The Tribunal accepts that the applicant provides emotional support to his daughter and that he is willing to provide such support in the future. The applicant’s evidence is that if he is released from detention, he wants to live with his wife and daughter.
The Tribunal acknowledges that if the applicant’s visa remains cancelled, which may result in ongoing lengthy or indefinite detention of the applicant, the applicant’s interactions with his daughter and his ability to provide various forms of support to her, will be very limited. While the Tribunal also acknowledges that the offence involved sexual intercourse with a minor child, there is nothing before the Tribunal to indicate that the applicant’s conduct towards his own daughter has been in any way detrimental.
The Tribunal has formed the view that it is in the best interests of the applicant’s daughter that the cancellation of the applicant’s visa is revoked, as it would give the daughter the opportunity to have the care and support of both parents. This consideration weighs heavily in favour of the revocation.
Expectations of the Australian community
Clause 8.4(1) of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
‘The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.’
In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:
‘…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.’
In his submissions to the delegate and the Tribunal the applicant refers to his poor mental health, caused by the events in Burma, and loss of his family members and friends, and exacerbated by his detention. There are before the Tribunal reports prepared by NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) regarding the treatment the applicant had received. The Tribunal is of the view that the applicant’s particular circumstances are such as to cause sympathy of the Australian community.
The applicant’s wife and daughter live in Australia. The applicant refers to his wife’s mental illness (schizophrenia) and intellectual disorder and past postnatal depression. Again, the Tribunal is of the view that such circumstances would result in a significant degree of compassion from the Australian community.
Significantly also in this case, if the applicant’s visa remains cancelled, and if he cannot be removed from Australia, there is a real prospect that the applicant may be detained indefinitely. The applicant submits that that such an outcome would be ‘manifestly unjust’ given his circumstances and the potential effect of detention on his mental health. The Tribunal is of the view that the prospect of indefinite detention may cause the Australian community to feel a strong degree of compassion towards the applicant.
However, the nature of the offending is also relevant in determining what the expectations of the community are. The offending involved sexual offending towards a minor child and the repugnant nature of the offence was exacerbated, in the Tribunal’s view by the fact that the applicant was related to the child, and was in a position of authority in relation to the child, being an elder relative and, at the time of the offending, with caring responsibilities. The NSW Police Report summarised above indicates that in January 2018, the child was removed from her home because of an altercation with her mother. The child’s father was overseas. That is, the child was already in a vulnerable situation which would have been known to the applicant. The applicant would have also known that the child was taken away from the family home and placed at his home for her safety and protection. Instead of offering that protection, the applicant seems to have taken advantage of the child’s youth and vulnerability. His inappropriate interactions with the child were multiple and not a single act – while there was a single instance of intercourse, the information in the police reports refers to inappropriate conversations that took place between the applicant and the child subsequent to the offending conduct.
The Tribunal has formed the view that the Australian community would find the nature of the offending abhorrent. Direction 90 states that the Australian community expects that the Government should cancel a non-citizen’s visa if they engage in conduct that raises character concerns. In this case, while the Tribunal accepts that the Australian community may feel sympathetic to the applicant’s particular circumstances, the Tribunal finds that the nature of the offending and the potential harm to the community, should the applicant reoffend, are such that the community would expect that the applicant should not retain his visa. That weighs heavily against the revocation.
Other considerations
International non-refoulement obligations
The applicant identifies as a Rohingya from Burma. There is before the Tribunal a statement from the Burmese Rohingya Community in Australia, dated 22 April 2018, which refers to the persecution of Rohingya in Burma. The Tribunal accepts that evidence.
The applicant has been granted a temporary protection visa. The Tribunal is satisfied that a protection finding has been made in relation to the applicant and has not been revoked. The effect of section 197C of the Act is that the applicant cannot be removed from Australia. The Tribunal acknowledges that this may result in lengthy or even indefinite detention (which is addressed below) but is of the view that the non-refoulement obligations would not be breached if the cancellation of the applicant’s visa is not revoked.
Extent of impediments if removed
In his statement to the delegate the applicant refers to his poor mental health, depression and PTSD resulting from the ‘ethnic cleansing’ of the Rohingya population in Burma in 2017, losing his parents and other family members and friends and he states his condition had deteriorated since his detention. The applicant refers to the killings since the 2021 coup, and the effect of COVID-19, causing him more stress and anxiety at the prospect of being forced back.
There is before the Tribunal a psychological assessment prepared by STARTTS Counsellor Tshimanga Beya, who states that the applicant attended several counselling sessions. It is stated that the applicant claimed he missed his daughter and was concerned about her well-being. He explained that being in detention reminded him of the persecution he had suffered in Burma and he complained of irregular sleeping patterns and occasional nightmares. Ms Beya reports that the applicant spoke about his concerns for his wife and daughter and their safety, he reported feeling anxious and helpless about his future, having nightmares and poor appetite. There is also before the Tribunal a report prepared by S. Momartin, a psychologist with STARTTS. The report indicates that the applicant presents with the symptoms of depression, anxiety and features of PTSD, and he reports he is finding it difficult to cope with his current situation and manage his stress, and he has expressed his concern for his wife and daughter.
The Tribunal has also been provided with a medical report from Dr Khalid El Skafi, dated 11 April 2018, which refers to the applicant suffering from adjudgment disorder with an anxious mood with symptoms being insomnia, lack of concentration, poor memory, low self-esteem, lack of confidence, lack of energy, fatigue, palpitation and difficulty breathing. There are other medical reports in relation to the applicant and in relation to his partner.
The Tribunal acknowledges that if the applicant was to be removed from Australia, there may be a significant impediment to him, as he may be returned to the country where he may face persecution. The Tribunal accepts the evidence about the applicant’s mental health. The Tribunal also accepts that his wife has her own health issues which may be exacerbated if the applicant is to leave Australia. The applicant’s departure from Australia may also adversely affect the applicant’s daughter. The Tribunal accepts that there would be significant impediment if the applicant is to be removed from Australia.
However, the Tribunal has formed the view that, in light of Australia’s recognised protection obligations and protection finding made in relation to the applicant, he will not be removed from Australia. This consideration is therefore neutral.
Impact on victims
There is no evidence before the Tribunal concerning any impact on victims. This consideration is neutral.
Links to the Australian community
The applicant is married and he provided to the delegate his marriage certificate indicating the marriage took place in December 2017. His wife and minor child live in Australia and are Australian citizens (evidence of their citizenship is before the Tribunal). As noted above, there is medical evidence before the Tribunal concerning the applicant’s spouse, which refers to developmental delay, intellectual disability and schizophrenia, as well as postnatal depression.
In her statement the applicant’s wife outlined the hardship she would experience as a single mother and due to being separated from her husband. She also described the support and comfort she received from the applicant. She reiterated that evidence in her oral evidence to the Tribunal, referring to her reliance upon the applicant and the need to be with him. There are also statements from other family members.
In oral evidence the applicant said that he was not aware if his wife was taking medication to treat the schizophrenia because he did not want to upset her. He states that she had been previously hospitalised for schizophrenia but that was before they were married. He also said that his wife has an intellectual disability due to a ‘chromosome deletion’, which affects her concentration and “not being able to function quick’ but otherwise his wife functions well. The applicant also states that his wife looks after their daughter well but needs help with her schooling.
There is evidence before the Tribunal concerning the applicant’s past employment including a written statement from his employers. One of his former employers gave oral evidence to the Tribunal, acknowledging the offending and requesting that the applicant be given another chance.
There are many character references provided by members of the community and the applicant’s friends. The applicant’s wife Ms R states in her evidence that they have been married for about four years and she has experienced his love and care in taking care of her and their daughter and others in need of help, supporting the community and others. Ms R states that her husband made a ‘first mistake’ and described the hardship she would experience as a single mother and the hardship her husband has experienced due to being separated from the family. There is another statement from Mr R, the applicant’s brother-in-law, who refers to the applicant being of good character, kind and generous, helping the community and being supportive of his wife and daughter. There is also before the Tribunal a statement of contact/reference from the Muslim Prison Chaplain of Corrective Services who states that the applicant has shown great remorse and contrition for his offending behaviour, and is determined to change his life and have a positive future. All those who gave oral evidence to the Tribunal about the applicant’s character expressed the view that offending was out of character and that he is generally a good and helpful person. The Tribunal acknowledges that evidence and is prepared to accept that those who provided these statements genuinely believe the applicant to be a good person.
The applicant’s brother-in-law Mr R gave oral evidence to the Tribunal. He states that he has known the applicant for a number of years and invited his sister to marry him. He states that the applicant has shown remorse (but did not refer to the victim) and he hopes the Tribunal can ‘let go’ of what happened so that the applicant can live with his wife and daughter and the family can help him financially.

The applicant’s wife Ms R gave oral evidence to the Tribunal. She referred to the care and support she and the applicant provide to each other and their reliance on each other. She states that she needs her husband to help her with daily activities and take her to appointments. Ms R told the Tribunal that she lives in the same building as her brother and he helps her with her daily life such as taking her shopping and taking her daughter on outings.
The Tribunal accepts that the applicant has significant family ties, as well as employment and social links to Australia. That consideration weighs in favour of the revocation.
Other factors
The considerations set out in Direction 90 are not exhaustive. In this case, an important consideration for the Tribunal is the real prospect of indefinite detention. Should the applicant’s visa remain cancelled, the applicant cannot be removed from Australia and, should the cancellation remain, he will not be able to make other visa applications without Ministerial intervention. In this case, the hardship of detention would be exacerbated by the applicant’s mental health. There are reports before the Tribunal concerning the effect of ongoing detention on the applicant’s mental health and the Tribunal accepts that prolonged or indefinite detention could be detrimental for the applicant. There is also before the Tribunal evidence concerning the mental health of the applicant’s spouse. An ongoing detention of the applicant means that she would have no support from the applicant in her own daily activities and in raising their daughter.
The respondent submits that the Minister may intervene, enabling the applicant to apply for, or be granted, other visas. The Tribunal acknowledges that it is a possibility but not a certainty and it cannot be assumed that the applicant will be granted other visas in the future.
The applicant was granted his temporary protection visa in April 2018 and, since it lasts for 3 years, it appears that the visa may have already expired. That is, the revocation of the cancellation does not mean that the applicant will be able to leave detention, but it will enable the applicant to seek other visas, including an extension of the temporary protection visa. The cancellation of the visa on character grounds will, on the other hand, preclude many of these options. Thus, if the cancellation is revoked, it is possible that the applicant remains in detention if he is not granted another visa but he will, at least, have the option of making other visa applications without Ministerial intervention. If the cancellation is not revoked, the applicant is likely to remain in detention for a lengthy or indefinite period because he cannot make other visa applications without Ministerial intervention.
Conclusion
The Tribunal has formed the view that the applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the applicant had committed serious offences and there remains a risk of reoffending, even if that risk is low. The nature of the offending is such that the Australian community would expect that the cancellation of the applicant’s visa is not revoked. The offence can also be classified as a family violence offence. The Tribunal has found that the protection of the Australian community, the fact that the applicant had committed a family offence and the expectations of the Australian community all weigh heavily against the revocation. These are primary considerations and the Tribunal gives these significant weight.
The other primary consideration, the best interests of a minor child in Australia, weighs in favour of the revocation. In this case, the Tribunal accepts that the applicant has a close relationship with his daughter and is keen to maintain his parental responsibilities in relation to the child. it is significant in this case that the applicant’s wife has significant health issues, which include schizophrenia and mental health issues, and while these presently appear to be under control, should that change in the future, the child will be more vulnerable and in need of parental care from the applicant. The Tribunal has found that the best interests of the child require that the cancellation be revoked.
The applicant has been living in Australia for about ten years (albeit on temporary visas only) and the Tribunal accepts that the applicant has significant ties in Australia, in particular the presence of his wife and daughter, other distant relatives, friends and employment opportunities. The Tribunal also accepts that would be an impediment if the applicant is removed from Australia, but has formed the view that in this case, the applicant would not be removed from Australia while there is a protection finding in relation to him that has not been revoked. The applicant’s links to Australia weigh in favour of the revocation, while impediment if removed and the impact on the victim is a neutral consideration.
The Tribunal has decided to place significant weight on the fact that if the cancellation is not revoked, there is a real prospect of the applicant remaining in detention indefinitely. It cannot be assumed that he would be permitted to seek other visas or that he would be granted another visa. In the particular circumstances of this case, where there is undisputed evidence before the Tribunal that the applicant’s mental health had been affected by his experiences in his home country, the adverse effect on his health by the ongoing detention is likely to be significant. There are other special circumstances in this case, most notable, the health of the applicant’s partner and their caring responsibilities towards their Australian citizen child. The medical evidence relating to the applicant’s partner is also not in dispute. While her health at present seems to be well managed with medication, there is evidence of past hospital admissions and a possibility that she would need the care and support that may not necessarily be required by others. the applicant will not be in the position to provide such care to his wife and daughter if his visa remains cancelled.
Overall, the Tribunal acknowledges the extreme seriousness of the applicant’s conduct and considers that there are circumstances, including many of the primary considerations, that are against the revocation. However, in the particular circumstances of this case, the Tribunal has determined that other factors – such as the best interests of the minor child in Australia, the special needs of the applicant’s partner, the strength and nature of the applicant’s ties to Australia, and, significantly, the prospect of indefinite detention if the cancellation is not revoked - when taken together, outweigh other considerations. Such factors on their own may not have persuaded the Tribunal that the cancellation should be revoked but the combined effect of these factors, and in light of the particular circumstances of the applicant and his partner, is such that the Tribunal decided that the cancellation should be revoked.
The Tribunal determines that the cancellation should be revoked. The Tribunal acknowledges that, should the applicant seek another temporary protection visa in the future (if the visa in question has already expired), consideration may again be given to his character.
DECISION
The Tribunal sets aside the reviewable decision and substitutes a decision that the mandatory cancellation of the Class XD Subclass 785 Temporary Protection visa is revoked.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member, K Raif

..................................[sgd]...................................
Associate
Dated: 29 September 2022

Date of hearing: 20 September 2022

Applicant: In person

Counsel for the Respondent: Ms A Poukchanski

Solicitor for the Respondent: Ms C Lewis, Australian Government Solicitor

Date of hearing:	20 September 2022
Applicant:	In person
Counsel for the Respondent:	Ms A Poukchanski
Solicitor for the Respondent:	Ms C Lewis, Australian Government Solicitor