LVMF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2471

LVMF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2471 (3 August 2022)
AppID:LVMF and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType: Migration
Division:GENERAL DIVISION
File Number: 2022/3967
Re:LVMF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:3 August 2022
Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
.........................[sgd]...............................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant was born in Iraq – not in contention that applicant is stateless – applicant held Class XB Subclass 202 Global Special Humanitarian visa – visa cancelled – applicant made representations that cancellation be revoked – delegate decided not to revoke cancellation – review by Tribunal – ministerial Direction No. 90 – primary considerations – sexual offending including sexual offending against a child – other considerations – protection finding in relation to applicant – effect of prolonged detention – extent of impediments if applicant removed to a third country – applicant has protection visa application on foot – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35
Australian Citizenship Act 2007 (Cth), s 25
Crimes (Appeal and Review) Act 2001 (NSW)
Migration Act 1958 (Cth), ss 14, 189, 196, 195A, 197, 197AB, 197C, 198, 499, 500, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
RCLN and Minister for Immigration and Citizenship; Re: [2011] AATA 418
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954 (entered into force 6 June 1960)
Declaration of International Conference on the Great Lakes Region (ICGLR) Member States on the Eradication of Statelessness, made at Brazzaville on 16 October 2017
Department of Foreign Affairs and Trade, DFAT Country Information Report - Iraq (17 August 2020)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – direction under s 499 – Direction No. 41 – Visa refusal and cancellation under s 501 (3 June 2009)
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
Department of Immigration and Border Protection – PAM3 – Act – Compliance and Case Resolution – Case resolution – Minister’s powers – Minister’s detention intervention power A218 (2016)
Department of Immigration and Border Protection – PAM3 – Act – Compliance and Case Resolution – Case resolution – Minister’s powers – Minister’s residence determination power A166 (10 October 2017)
House of Representatives – Amended Explanatory Memorandum – Migration Amendment (Character and General Visa Cancellation) Bill 2014
REASONS FOR DECISION
Senior Member D. J. Morris
3 August 2022

On 20 June 2022, the Tribunal made orders under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings and assigning the anonym ‘LMVF’. The order also provided that the hearing of the application occur in private.
LVMF was born in 1992 in Iraq. He arrived in Australia in company with his family in 2008, as the holder of a Subclass 202 Global Special Humanitarian visa (‘the visa’).
The visa was cancelled on 11 September 2018 under section 501(3A) of the Migration Act1958 (‘the Act’) on the basis that LVMF had been convicted in the District Court of New South Wales on 19 November 2015 of crimes of a sexual nature against three victims, with the offending occurring in November 2013 and January 2014.
On 21 September 2018, LVMF applied for the mandatory cancellation of the visa to be revoked under section 501CA of the Act. On 12 May 2022, the Department of Home Affairs sent LVMF a letter informing him that a delegate of the then Minister had decided not to revoke the mandatory cancellation of the visa.
On 18 May 2022, LVMF applied to the Tribunal for review of that 12 May 2022 decision.
HEARING
A video hearing was held on 20, 21 and 22 July 2022 under section 33A of the AAT Act. The Applicant was represented by Mr Benjamin Zipser of Counsel, instructed by Ms Wajiha Ahmed of Buttar, Caldwell & Co., Solicitors. The Respondent was represented by Mr Cormac Burke of Sparke Helmore Lawyers. The Applicant’s mother, Ms WS, and fiancée, Ms AH, gave evidence. Mr Patrick Sheehan, a forensic psychologist, gave evidence as an expert witness. The Tribunal appreciates the assistance of interpreters in the Arabic language for Ms WS’s evidence and the Farsi language for Ms AH’s evidence.
The Tribunal took into evidence the documents listed in the annexe to these reasons. The Tribunal also took into account a Statement of Facts, Issues and Contentions lodged by the Applicant (‘ASFIC’) and by the Respondent (‘RSFIC’), and a document titled ‘Outline of closing submissions’, lodged by the Applicant. At the conclusion of the hearing, the Tribunal gave leave for parties to lodge additional written submissions by no later than 28 July 2022, after which the Tribunal would reserve its decision. Both parties did so. The Respondent then submitted that the Applicant had raised new issues, and asked permission to lodge further submissions by 1 August 2022. The Tribunal granted this. All these submissions were taken into account.
QUESTIONS BEFORE THE TRIBUNAL
In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act, the Tribunal is not reviewing the delegate’s decision. It is making a fresh decision based on the law and the information before it. Parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, the Federal Court said, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
Therefore, there are two questions for decision. First, whether the Applicant fails the “character test” in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for “another reason”.
Does the Applicant fail the character test?
A person does not pass the character test under section 501(6)(a) of the Act (‘substantial criminal record’) if under section 501(7)(d) the person has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more.
Before the Tribunal (GD, pp 51-53) was an Australian Criminal Intelligence Commission national criminal history check (‘ACIC report’) dated 14 April 2020. The ACIC report records that in November 2015 before the District Court of New South Wales, LVMF was convicted of the offences of Aggravated sexual assault – victim under authority of offender (two counts); Indecent assault – person under 16 years of age; and Assault with act of indecency (two counts). For these five convictions, LVMF received an aggregated prison sentence of nine years and nine months with a non-parole period of six years. On the same day, two other pleas of guilt were taken into account by the Court without conviction, one for the offence of Aggravated sexual assault – victim under authority and one for the offence of Assault with act of indecency.
Both parties submitted that LVMF did not pass the character test. The Tribunal finds that because LVMF has been sentenced to a term of imprisonment exceeding 12 months and was serving a sentence in full-time custody on the date his visa was cancelled, he has a “substantial criminal record” and does not pass the character test. The visa must be cancelled by operation of law.
THE MINISTERIAL DIRECTION – DIRECTION NO. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under section 499(2) of the Act.
On 8 March 2021, the then Minister made a direction under section 499, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factors in the circumstances of the particular case.
The Tribunal must consider the primary and other considerations in the Direction as relevant to LVMF’s personal circumstances and his offending history.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
The Applicant’s offending can be distilled into incidents occurring on one day in November 2013 and one day in January 2014.
November 2013 offending
LVMF was studying a TAFE course. At the end of class one day, a classmate (the female victim ‘HB’) agreed to give him and another classmate a lift home. The other classmate was dropped at a railway station and HB and LVMF continued on in her car. LVMF directed HB where to drive and the route went further away from the built-up area and into bushland. HB became very scared. The sentencing Judge recorded (GD, p 68) that she said words to the effect: “are you going to kill me?” and “are you going to rape me?”. LVMF laughed in reply. HB then decided to turn her car around. LVMF assaulted HB as she was driving by kissing her on the lips and neck. HB told him to stop and tried to push him away. LVMF then started fondling HB’s breasts, rubbing her groin area and trying to undo her pants. HB tried to slow the vehicle down from about 80 km/h to 50 km/h. As she was doing this, LVMF undid the button and zip of his pants. He then pushed the gear stick into ‘park’ and pulled up the handbrake. The car came to an abrupt stop. After the car stopped, LVMF continued to hold the victim’s neck and tried to kiss her. He grabbed her breasts and tried to undo her pants. The Judge said that throughout this period HB told him “No”, and “Stop” and “Fuck off”, to which LVMF responded: “Please, come-on”. This conduct gave rise to the offence of Indecent assault.
With the car now stopped, the Court recorded that LVMF placed his hand around HB’s neck and pulled her face towards his groin. HB resisted and struggled. LVMF said to her “do it”, and “come on”. HB believed that the Applicant was trying to force her to perform fellatio. At this point she panicked and pushed him back with both hands. LVMF sat back and zipped up his pants. They resumed driving. LVMF told her where he lived. The Applicant kissed her as HB dropped him off. About half an hour later, LVMF sent a Facebook message to HB stating that: “Ha, ha, sorry I kinda fucked up but that was a way to let you know, let me make it up to you and go for a coffee or something”. HB did not respond (GD, p 69).
The same day, HB told her mother and a friend about what happened but decided not to report the matter to police. However, after she saw a television report about LVMF sexually assaulting other girls in January 2014, she decided to come forward.
For this offending, the Court imposed an indicative sentence of 28 months imprisonment.
The sentencing Judge said (GD, pp 78-79):
Clearly the victim was terrified before the offence started because she realised they were in an isolated location with which she was not familiar. She turned around and started driving back, no doubt in the belief or hope that she would be okay if she kept driving. The victim suffered no physical injury. There is no victim impact statement but it is likely she will suffer long-term emotional or psychological problems.
His Honour, in rejecting submissions that a bond would be appropriate for this offending, described it as a very serious example of an offence under the relevant provision.
January 2014 offending
LVMF was employed as a security guard at a suburban shopping centre. He was working with another security guard, ‘AM’. Late one afternoon they saw two females, referred to as ‘ES’ and ‘PS’ in the sentencing remarks. ES was aged 13. PS was aged 17. AM approached ES and PS and told them to wait in an adjacent department store. AM and LVMF then approached the two and LVMF showed them his security identification and said, “You’re actually being banned from [shopping centre], we need to escort you out”. LVMF and AM then followed ES and PS out of the centre. Adjacent was a disused cinema, which had no electricity and was therefore dark. LVMF asked the victims if they wanted to “check out the old cinemas”.
When they entered the cinema complex, AM grabbed PS by the waist and took her into one of the cinemas. LVMF then told ES to come with him to another cinema. When they got there, he took off his jacket and said to her: “let’s have some fun”. ES replied: “No, what the fuck”. LVMF then tried to take ES’s jacket off and undid one button, but she punched him in the face. For this conduct, LVMF pleaded guilty to the offence of Indecent assault – person under 16 years of age.
AM and PS then re-joined LVMF and ES. LVMF grabbed one of PS’s breasts and touched her leg under her skirt. ES and PS tried to walk away but were followed by AM and LVMF. LVMF approached PS from behind and pushed his body up against her. He placed her hand on his groin. LVMF then pulled PS into the entrance of a cinema, pushed her against the door and grabbed her hair. He then pulled down his pants and pulled out his penis. PS said “dude, no”. LVMF, still holding her hair, said “come on please. Just go till I come”. PS again said “No”. LVMF told her to get on her knees. PS said “No” but the Applicant forced his penis into her mouth and would not allow her to pull her head away. For this conduct, LVMF pleaded guilty to the offence of Aggravated sexual assault – victim under authority of offender.
LVMF then pulled PS by her hair and tried to kiss her. She bit his lip. LVMF put his hand under her skirt and pushed his fingers into her vagina, causing her pain. He asked the victim if she wanted to lick his penis. She said no. At this point, ES walked into the cinema where LVMF and PS were, and LVMF laughed and said, “she doesn’t like it”. The act of digital penetration gave rise to the plea of guilty lodged for the offence of Aggravated sexual assault – victim under authority of offender.
AM and LVMF would not let ES and PS go until they had exchanged phone numbers. PS put LVMF’s phone number into her mobile phone and he put the name ‘Joe’.
ES and PS then caught a bus to PS’s home. They told PS’s mother and two others what had happened. An ambulance and the police were called. PS later went with the police to the cinema building and indicated where the offences had occurred. During this visit, the police took a forensic sample from a wall which subsequently matched with LVMF’s DNA.
When arrested, LVMF denied that any sexual contact had taken place, but could not explain to the police how his mobile phone number was in PS’s phone.
The sentencing Judge said he was satisfied that this offending was premeditated, and that the victims were lured into a dark and deserted building by the exploitation of AM’s and LVMF’s positions as security guards. His Honour did not find that LVMF instigated the offences but that he was a voluntary participant and, once they had started going to the disused cinema building, that he intended to engage in sexual activity with the two victims.
In terms of the conduct against the younger victim, ES, the Court found that in a different context, the indecent assault would be toward the bottom of the range, but it took place when she had been lured by two adults abusing their positions to a dark and deserted place. The Judge noted that LVMF had said other security guards had told him they had used the cinema building in the past for the purposes of sexual encounters with women.
His Honour said that the offending against PS was humiliating and committed in total disregard for her protests and disrespect for her integrity.
The Tribunal considers that the 2013 and 2014 offending incidences are objectively very serious. In the first case, the victim was a person known to the Applicant as a fellow classmate. She had been kind to offer him a lift home after class. He repaid that kindness by directing her to a bushland area and then assaulting her, first as she drove, and then forcing her car to stop and assaulting her again. By her comments to him that she was scared he was going to kill or rape her, it is clear she was very fearful. LVMF did not care that she was not consenting, and he was reckless as to the danger to them both of assaulting her as she was driving at a speed of around 80 km/h.
In the second case, the offending is aggravated in several respects. The Applicant and his co-accused were employed in positions of authority. They wore uniforms and carried ID cards. When they took the two victims out of the shopping centre, they were exercising this authority, but clearly with the intention of the victims being objects for sexual encounters. One of the victims was aged only 13, which is a further aggravation. Taking them to the disused cinema, which was dark, is another aggravating circumstance. Forcing PS to fellate him against her will was degrading and, as the Judge said, humiliating.
Paragraphs 8.1.1(1)(a)(i) and (ii) state that violent and/or sexual crimes, and crimes of a violent nature against women or children are viewed very seriously by the Australian Government.

There was discussion during the hearing about whether the offending could be categorised as ‘violent’. The Tribunal considers that any sexual violation contains a degree of violence, in the sense that such offending is a violation of a person. There does not need to be attendant physical injury. In the November 2013 offending, it is clear from the sentencing remarks that HB did not want any form of sexual encounter. She had indicated that she was scared before LVMF first touched her. He assaulted her as she drove, which not only inhibited her ability to rebuff him, but also put them both in danger. He then caused the vehicle to stop abruptly, before again assaulting her. There was no sign at all that HB was interested in any intimate encounter with the Applicant.
In the second case, there is no apparent physical assault in relation to LVMF’s interaction with ES, though she was clearly frightened and not a willing participant. The Applicant attempting to undo her clothing was clearly an indication that he wanted physical contact, which she did not, and the Court found that sufficient to found a conviction for indecent assault. In relation to PS, there are many signs that this was a violent encounter by the Applicant pulling her hair, pushing her about, forcing her onto her knees and forcing her to fellate him. He admitted in his oral evidence to the Tribunal forcing PS’s hand onto his penis and knowing, at the time, that she was resisting.
Paragraph 8.1.1(1)(c) requires the Tribunal to have regard for the sentence imposed by the Courts for a crime or crimes. LVMF was given a very significant prison sentence of nine years and nine months and a non-parole period of six years.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of offending and whether there is any trend of increased seriousness. The ACIC report shows that LVMF’s offending is contained only to the period from November 2013 to January 2014. He has no other prior or subsequent offending, so he cannot be said to be a frequent offender.
The Tribunal considers that there has been a trend of increased seriousness. The first offences involving HB were serious, and some of the aggravating features have been outlined above. However, this was offending of a different nature in that LVMF knew the victim.
The second group of offences involving ES and PS is objectively much more serious. They occurred only a few weeks after the offending against HB. ES and PS were strangers to LVMF. AM decided they would be suitable quarries for a sexual encounter, and LVMF willingly went along with this. ES was aged 13. In his oral evidence to the Tribunal, LVMF said that PS told him that “I am 18 and she is 17”. Whether she did indeed say, this is not recorded by the sentencing Judge and, in any event, the Tribunal finds that it is not plausible in a well-lit shopping centre that LVMF could have reasonably thought that a 13-year-old girl was aged 17.
There is some cumulative effect of repeated offending (paragraph 8.1.1(1)(e)) because, although there is not a long history of criminal offending, all the offences relate to sexual assaults.
Neither of paragraphs 8.1.1(1)(f) or (g) are relevant to LVMF’s circumstances.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Tribunal must have regard to the nature of harm to individuals or the community should LVMF engage in further criminal or other serious conduct, and the likelihood of him doing so.
The nature of harm to individuals is self-evident, but was mentioned in his oral evidence by Mr Sheehan, the forensic psychologist. He said that victims of sexual assault can suffer prolonged psychological harm, including sometimes conditions such as Post-Traumatic Stress Disorder, and can sometimes turn to substance or alcohol abuse to cope. The Tribunal is aware that other effects can be anxiety and distrust, and difficulty in maintaining personal relationships after a particularly traumatic sexual assault. The Tribunal does not have information on the long-term effects on HB, ES or PS, but objectively if LVMF was to commit further similar acts, these are some of the types of harm that a victim could experience. There is no evidence of any other general criminal conduct by LVMF, so there is no ability for the Tribunal to assess the likelihood of that occurring.
LVMF availed himself of a number of judicial opportunities available to him after he was sentenced in November 2015. He lodged an ‘all grounds’ appeal against the convictions in the New South Wales Court of Criminal Appeal (GD, p 86). Part of the grounds of the appeal was that he sought to rely on fresh evidence (GD, p 235). ES had been visited by a private investigator engaged by the solicitors for LVMF. ES had subsequently made a statement retracting large parts of the evidence she had given to the police when they interviewed her in early 2014 (noting that none of the three victims was required to give oral evidence because LVMF pleaded guilty). The Applicant asked the Court of Criminal Appeal (‘CCA’) to set aside his pleas and the convictions and submitted that verdicts of acquittal should be entered on all counts. The offending against HB was unaffected by the ‘fresh evidence’.
In May 2019, the CCA heard the matter, including hearing oral evidence from LVMF and ES. The Court dismissed the application for leave to appeal against the convictions. In the judgment, the Chief Judge in Common Law said, inter alia, that ES “performed poorly under cross-examination” and that her evidence was “implausible”.
In relation to new statements submitted by ES and her new evidence at the CCA, the Judge delivering the Court’s decision found:
Having seen ES give her evidence before this Court, and examining that evidence in the context of her statements to the police in 2014…I would not describe ES’s present evidence as either credible or reliable, and I think it is highly unlikely that any jury would be likely to believe it, or even to give it sufficient weight as to raise a reasonable doubt as to the applicant’s guilt of the charged offences.
ES’s August 2018 statements and her evidence to this Court are inconsistent with the accounts that she gave as a 13 year old child, within days of the events taking place. Unlike those contemporaneous accounts, her present evidence is implausible, and lacking in cogency. Indeed, I would go so far as to conclude that it is false.
His Honour said (GD, p 341) that ES’s original evidence was given in language ‘all her own’ and in what he called a remarkably vivid and compelling manner, and that her then evidence was consistent with the evidence of PS, PS’s family, and a family friend, who gave an account of the demeanour of PS and ES soon after the events.
In relation to LVMF’s evidence at the CCA, the Judge said (GD, pp 348-349):
The applicant lied to his employers when first asked about the events of [redacted] January 2014, he says because his co-accused told him to, and he was concerned for his employment. Although when speaking to police [in] January 2014 he must have understood that much more was at stake than his employment, he lied extensively in an interview that contains 1530 questions and answers. Having entered his pleas of guilty, he says that he lied to the author of the pre-sentence report, and lied to [redacted] during a two hour interview by, he asserts, parroting what he says he was told to say by [his solicitor], evidently so successfully that she assessed him to be a reliable historian.
The applicant subsequently penned a letter to the sentencing court that he now says was dictated by a fellow unnamed gaol inmate and was false. He also asked his father to make a false statement as to his remorse, and tendered that to the sentencing court.
That level of deliberate falsehood, if it was falsehood, is such as to necessarily give strong pause to any court assessing the veracity of anything said by the applicant, particularly where what he says is said in support of a significant benefit [to] him. After all, as the applicant said in his affidavit, in the District Court, he was prepared to tell anyone whatever they needed to hear, if it meant he could “get out”. How much more might that be the case where the applicant’s assertions to this Court go to support his application for the convictions to be set aside and acquittals entered?
Those concerns were not allayed by seeing the applicant give his evidence before us. I judged him to be unreliable, a witness who would say whatever he regarded as necessary to advance his case. He was even prepared in evidence to implicate his father in, at least, making a false statement, if not perverting the course of justice, to serve his ends.
In August 2019, the Applicant lodged an application for special leave to appeal with the High Court of Australia. In December 2019, the High Court (Gageler and Keane JJ) refused the application for special leave (GD, p 383).
In June 2020, LVMF’s solicitors petitioned the Governor of New South Wales seeking that Her Excellency exercise the pardoning power available under the Crimes (Appeal and Review) Act 2001 (NSW). In his submissions at the hearing, Mr Zipser told the Tribunal that the petition had been refused in February 2021. The Tribunal noted that the delegate making the reviewable decision seemed unaware that the pardon was not still on foot. Mr Zipser said it was an oversight that the refusal of the petition had not been communicated to the Minister’s Department.
The Tribunal has set out this series of actions taken by or on behalf of LVMF after his sentencing not to cast any question on the fact that the Applicant was entitled to exercise his rights to pursue legitimate legal avenues, but to indicate that it cannot be said that LVMF immediately accepted the natural consequence of his pleas of guilt and the sentencing that followed in November 2015, and was still contesting it in May 2019.
During cross-examination in the hearing, LVMF was asked by Mr Burke about the events in the disused cinema building. He denied lifting PS’s skirt and denied pulling PS into a cinema. He denied undoing his trousers and pulling out his penis. He denied that PS said, “Dude, no”, and that he responded, “Come on please, just go until I come”. LVMF denied telling PS to get to her knees and pushing his penis into her mouth and denied pushing her head back. He denied digital penetration. Instead, LVMF said that PS had brushed her hand against his groin, and he thought that indicated “she wanted to do something” and that he had guided her to masturbate him.
LVMF agreed that he had signed an agreed statement of facts which set out the facts which were summarised by the sentencing Judge. He said: “My old lawyer explained it was a plea of convenience…I accepted the arguments and the facts because of the plea deal and the DPP didn’t want to change anything.”
LVMF agreed that when he was arrested, two days after the events at the shopping centre, that he had lied to the police. He agreed he had suggested that his semen found on the wall at the cinema was his spit. He told the Tribunal: “My co-offender told me to deny everything. I was very scared and didn’t want to get in trouble…Today I say it wasn’t consensual. Then I thought it was consensual.”
LVMF agreed that in a pre-sentence report he told a Corrections officer that he had been selfish and “woke up to his behaviour”. He said he had “agreed with [his] lawyer to say things like that to get a reduced sentence”. He agreed with Mr Burke that he made these remarks so that the Court believed he was remorseful when in fact he was not.
LVMF was referred to a 2018 affidavit he swore in relation to the CCA proceedings. He told the Tribunal: “when I wrote this affidavit, in my state of mind, I was still thinking that she [i.e., HB] was consenting. Later on, in the programme, I have learned what I have done...”
When pressed directly by the Tribunal as to whether he was saying that the sex offenders programme he did in prison taught him what consent means, he responded: “at the time of making the affidavit…I thought it was consensual.”
LVMF wrote in the affidavit that he did not sexually assault HB, ES or PS and was asked if he still maintained that position. The Applicant said: “No, I do not. In 2015 I thought I was innocent, after doing the programme I came to understand the wrongdoing of my actions.”
Mr Burke asked the Applicant if he was aware that his solicitors hired a private investigator to interview ES. He replied: “Yes, I was notified by my lawyers that they did that.”
LVMF agreed that ES’s evidence was found to be false by the CCA and that it was, in fact, false.
Mr Burke put it to LVMF that he still will not accept the true circumstances of his convictions. He responded: “I’ve learned through the programme, what I inflicted in pain and suffering. I absolutely accept my convictions.”
Mr Burke said that LVMF would not accept that he had assaulted HB, PS and ES. LVMF responded: “Why I went to the Court of Criminal Appeal was different but doesn’t shy away from my acceptance of the charges.”
Mr Burke suggested that LVMF still displayed a lack of insight into his offending. He responded: “I have nieces and nephews of my own. Me and my partner are planning to have children in the future. I would never under any circumstances want these kids put under that situation…I accept my charges and know it was completely wrong.”
In re-examination, Mr Zipser noted LVMF’s evidence: that at that time, LVMF thought PS was consenting, but following completion of the sex offender course, his mindset shifted. He asked LVMF if he was able to explain the conduct that indicated PS was not consenting that he did not pick up. LVMF responded:
I was thinking it was consensual and we were having a sexual interaction. I have ignored all indicators, signs of discomfort, all signs they were afraid, the place they were in mentally. What I have put these victims through, no one deserved it. I have put them through trauma and scarred them for life. Every day I think – I do not have a chance to apologise. Consent is not what you think you want. It is what is given…I took advantage of my position.
The Tribunal asked the Applicant: what did PS say or not say that indicated she was not consenting to the sexual act? He responded:
PS was giving me a lot of indicators to not continue doing the act. She was not comfortable. She did not want to participate in that act, however I ignored it and just pressed ahead. She said ‘no’ to committing this act with me. I ignored that. She pulled away when I kissed her…When I was feeling her groin area, she pulled away physically. I kept her hand there on my penis with my hand while I masturbated.
In respect of the events in the car with HB, LVMF’s evidence had been that HB was consenting or not objecting. Mr Zipser asked what were the actions of HB that indicated she objected. He responded:
When she said are you going to kill me or rape me, I laughed. That suggested she was feeling a[n]…amount of fear and discomfort and feeling like something will happen to her. For me to just ignore and laugh, that to me was a big indicator that I ignored at that time. I began to kiss her and put her in danger. Now it is appalling what I did, and it is extremely bad. I have learned not to use sex to cope.
The Tribunal asked LVMF whether he knew from his own upbringing, well before the first encounter with HB, that he should not force himself on people. He responded: “Yes; I didn’t think. I was too focused on my gratification.”
Mr Patrick Sheehan’s evidence
Mr Sheehan told the Tribunal he had examined LVMF on two occasions, in November 2019 and June 2022, and provided reports in relation to each examination. The first report was in relation to a parole hearing.
Mr Sheehan told the Tribunal that when he saw LVMF on the first occasion, the Applicant had said he was innocent and that all three victims had consented to the sexual interaction. He agreed that it was fair to say that at this time, LVMF had not accepted responsibility for his actions.
Mr Sheehan agreed that this response demonstrated a lack of insight. He said: “A person may have insight but can’t acknowledge what they’ve done.”
Mr Burke asked whether poor insight could increase the risk of recidivism. Mr Sheehan responded:
Indirectly. We used to assume it. We worked on that basis for some time. Psychologists used to treat people to break through denial. It became clear that denial itself does not carry a risk of recidivism. Insight is usually more about understanding the process that led to the offence. Denial obscures an understanding of the level of insight.
Mr Sheehan was then asked about the second time he saw LVMF. He said he was aware of the all-grounds appeal to the CCA but he had not been provided with a copy of the judgment. He did not know that LVMF had been found to be an unreliable witness nor that the CCA had found he would say whatever it takes to advance his case (GD, p 349).
Mr Sheehan said LVMF seemed genuine when he examined him. He told the Tribunal:
His account of the offending has been unstable and has moved back and forward between acceptance and denial. A lot of shifting around. I discussed that with him because all he achieves is appearing dishonest. He had the ability to call on his treatment which was some time ago, that was unusual, to talk about it and how he applies it in his daily life.
Mr Burke asked Mr Sheehan whether he was of the opinion that LVMF accepted his offending. He responded: “I decided he was accepting, now. This is not an uncommon feature of accepting/not accepting/accepting again. I can say he was genuine to me. I can’t guarantee that he won’t shift again.”
The Tribunal asked Mr Sheehan directly whether he got the impression LVMF was coming clean or reluctant to accept. He responded: “It is hard to know. He is worried about family acceptance. Men are generally extremely anxious about losing that small support they have”. Mr Sheehan said that it was not uncommon with sex offenders that they admit their offending to many other people, including therapists, before they feel able to admit it to their families.
Mr Burke asked Mr Sheehan whether he was concerned that from 2014 until now there is still denial on the Applicant’s behalf of non-consensual acts. He responded:
One way to go about trying to work out if someone is minimising is to go through the statement of agreed facts. Psychologists don’t do that. We used to do that. Modern practice is that it is not helpful. What is important for therapeutic gain is whether the person acknowledges that they caused distress. He does himself no favours by flip-flopping, but that is not a main factor in risk. As long as there is some recognition of harm done then we can work on regulation and trauma.
Mr Burke asked Mr Sheehan whether, in his most recent report, he took into account the fact that LVMF now has a partner, the support of his family, an offer of employment and whether his assessment of the risk of re-offending nonetheless remains the same. Mr Sheehan responded: “It is better that he does have those. It shows maturity and prosocial plans. But it is not enough to categorically move him to ‘lower risk’. STATIC risk as a long-term predictor is pretty good.”
The Tribunal told Mr Sheehan that in his evidence at this hearing, LVMF maintained that there had been no oral sex between him and PS. He responded: “It is hard to say that elevates the risk. I still say the risk is best viewed as moderate to middle range.”
The Tribunal noted to Mr Sheehan that one of the victims was aged 13 at the time of the offending. Mr Sheehan responded: “I don’t think LVMF meets the criteria for a paedophilic sexual disorder. He was of the view at the time that she was 17, he hadn’t given it much thought.”
In his June 2022 report, Mr Sheehan wrote (A2, p 93):
In my view, should [LVMF’s] visa be restored, the evidence (including [LVMF]’s maturation and solid release plans) supports a long term risk estimate of sexual reoffending in the moderate range of the risk spectrum. There is no compelling evidence of any residual risk of other types of offending, commensurate with the low risk rating on the Level of Service Inventory – Revised (LS-R) noted in the Community Corrections Report ([redacted] January 2020). In my expert view, [LVMF] shows all indications that he is oriented towards positive engagement with the community and positive engagement with community supervision. His plans are prosocial, achievable and consistent with the goals of rehabilitation.

The Tribunal notes that there is evidence of the Applicant participating ‘enthusiastically’ in the sex offender programme he undertook in prison. Mr Sheehan especially noted that LVMF was unlike many offenders in that he had remembered what he had learned from the programme even after many months since completing it and was able to apply that to his current thinking.
Given that there is no evidence of LVMF committing any general offending, the Tribunal finds that he is a low risk of offending in that respect.
The Tribunal further accepts the expert opinion of Mr Sheehan that LVMF presents a ‘moderate’ risk of sexual re-offending, and so finds. The Tribunal accepts that, by itself, quibbling over minor details of a sexual encounter may not fuel an increased risk of offending. However, what remains concerning is LVMF’s maintaining that in what the Tribunal might label as the ‘main’ offending encounter with PS, the Applicant is still unwilling, several years on, to accept the facts that were found by the Court and re-affirmed by the CCA. This feeds into a conclusion that LVMF does not completely accept the extent of his culpability for his actions.
The Tribunal finds that the sexual offending committed by LVMF was very serious and that even a moderate risk of re-offending in that way is unacceptable. This primary consideration, therefore, weighs heavily against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
Neither party submitted that this primary consideration is relevant to LVMF’s offending or other conduct. The Tribunal finds that it weighs neutrally in this assessment.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.4(4) of the Direction, where relevant. These include whether LVMF has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Tribunal determines that there are currently 12 nephews and nieces of LVMF who are under the age of 18. Counsel for the Applicant submitted that these children would be adversely affected if their uncle’s visa is not restored. Mr Zipser noted that, in the reviewable decision, the delegate stated that the impact on the nieces and nephews is likely to be limited because LVMF does not have daily care and control of any of the children, and he has not met some of them in person.
The Tribunal confirmed with the Applicant that one of his nieces and nephews had been born before his arrest and placement in custody, and that he met her as an infant. LVMF agreed that all the others had been born since he has been either on remand, serving his prison sentence or in immigration detention.
The Tribunal does, however, accept that LVMF maintains regular contact with his brothers and sisters through telephone and social media means, and by video-calls and that on many occasions, his nieces and nephews participate in these calls. Accepting that many of them are very young, the Tribunal concludes that there would be some impact on them, mainly through the effect on their parents, if LVMF’s visa is not restored.
The Tribunal notes that should LVMF be released into the community, he will be subject to parole conditions and registration on the NSW Sex Offenders’ Register. The conditions include that he must not be in company with a person under 16 years of age unless accompanied by a responsible adult, nor engage in written or electronic communication, including through social media, with any person under 16 unless the person is approved by his parole officer (GD, p 403). These conditions would also have some effect on LVMF’s ability to maintain contact with his nieces and nephews in the community – whilst they are minors – but there is no evidence before me that LVMF’s siblings have any concerns, or that they would deny him avuncular contact.
This primary consideration weighs in favour of revoking the mandatory cancellation of the visa, but that weight is not significant because of the non-parental nature of the Applicant’s relationship with the children and his absence from their lives.
Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The second of these categories is relevant to LVMF’s offending.
The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
Although LVMF has not been a long-term offender, the two occasions of his offending, which led to several convictions for sexual crimes, would be viewed in a poor light by the Australian community. In particular, the circumstances attending the offending against ES, a minor, and PS (then aged 17), in the fact that LVMF and his co-offender had taken them under authority in their roles as security guards in order to facilitate a sexual encounter, also weigh unfavourably, and strongly so, in regard to this deemed expectation.
The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., 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. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
Paragraph 9.1(2) of the Direction tells decision-makers to carefully weigh any non-refoulement obligations against the seriousness of the non-citizen’s criminal offending or other serious conduct and reminds the Tribunal that unlawful non-citizens are liable to removal from Australia in accordance with section 198 of the Act and, in the meantime, detention under section 189 of the Act.
The High Court of Australia, in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, has recently clarified what the task of the Tribunal is in assessing submissions made in respect of non-refoulement obligations by or on behalf of a non-citizen. The majority of the Court (Kiefel CJ, Keane, Gordon and Steward JJ) held, at [28]-[30]:
Decision-makers’ approach to non-refoulement
Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
Where the representations do include, and the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under section 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia’s domestic law.
Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under section 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(Emphases in original. Footnotes omitted.)
In the RSFIC, the Minister accepted that a ‘preliminary’ finding has been made by a protection visa delegate that LVMF is owed international non-refoulement obligations because he is at risk of harm or persecution owing to three personal characteristics: his country of former habitual residence was Iraq; he is a Shia Muslim of Bidoon ethnicity; and he is stateless.
The Respondent noted that LVMF has applied for a protection visa, and a decision has not yet been made in respect of that application. The Minister submitted that the Tribunal could defer any further consideration of whether he is owed non-refoulement obligations to the completion of the protection visa process, as held in Plaintiff M1-2021.
The Respondent further submitted that the 2021 amendments to section 197C of the Act ensure that it does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process.
The RSFIC submitted that LVMF will not be liable for removal from Australia if his visa remains cancelled but that he will remain in immigration detention until his protection visa application is determined.
In the Respondent’s written closing submissions, the Minister states:
Critically, in the event the Tribunal decides to affirm the delegate’s decision, this would not result in the applicant being subject to the exercise of the duty under s 198(1) of the Act for him to be removed from Australia. It would instead remain the case that it is not reasonably practicable to remove the applicant due to his statelessness, his yet to be determined protection visa application, and the protection finding made as part of the Department’s consideration of the protection visa application – which would prevent his refoulement to Iraq even if the protection visa application is refused….Therefore, the Tribunal need not consider whether its decision would lead to the applicant’s removal in breach of Australia’s international non-refoulement obligations, or the potential risk of harm that he claims he would face in Iraq.
Mr Zipser, in contradiction, submitted that the possibility that the Minister will grant another visa to the Applicant is remote and that the country information indicates that stateless Bidoon in Iraq presently face discrimination amounting to persecution.
The DFAT Country Information Report – Iraq (dated 17 August 2020) states at paragraph 2.15 that the UNHCR reported in April 2020 that there were 47,515 stateless persons in Iraq including “historically undocumented minorities such as the Bidoon…”. The report goes on, at paragraph 2.17, to say:
As of 2006 (the latest year for which data was available), an estimated 54,000 undocumented ‘Bidoon’ (stateless) individuals were living as nomads in the desert in or near the southern governorates of Basra, Thi Qar and Qadisiyyah. This community descended from individuals who never received Iraqi citizenship upon the state’s founding.
The Tribunal notes the written statement from LVMF’s father that he was born in Kuwait, as were his parents (i.e., the Applicant’s paternal grandparents) and that, as Bidoon, they were not given citizenship of Kuwait nor any ability to own land or entitlement to government benefits.
The Tribunal notes that in his closing submissions, Mr Burke abandoned the qualifier ‘preliminary’ and submitted that a protection finding has been made in relation to LVMF. The Tribunal is satisfied to find that, noting that it does not have the material before it to undertake a detailed analysis of protection claims by LVMF, there is no real contest that he is now owed protection obligations, on the face of the information thus presented.
In this circumstance, the Tribunal does not make a finding in regard to this consideration. Specific consideration will be given to the prospects of long detention and the other options available to the Minister later in these reasons.
Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to ‘their home country’ in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, and/or economic support available to him if repatriated.
There is no definition in the Direction, nor in the Act, of what is a ‘home country’. Logically, the authors of the Direction can be taken to mean the country of citizenship of the non-citizen or, in the alternative, the country to which the person has a right of return. The only relevant country of reference for LVMF is Iraq. It is accepted by the parties, and by the Tribunal, that as a Bidoon, he does not have a right to return to Iraq. This consideration is therefore not relevant, and therefore attracts neutral weight.
However, the Tribunal will address a special consideration later in these reasons, applying the same listed considerations as are in paragraph 9.2(1)(a) to (c) in a general sense, as far as that can be done.
Impact on victims (paragraph 9.3)
This part of the Direction requires the Tribunal to consider the impact of the decision on victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There was no evidence before the Tribunal that this is the case.
This consideration therefore weighs neutrally.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal 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 the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
The Applicant came to Australia aged 16 and completed his High School Certificate (‘HSC’) here. He then enrolled in a TAFE Nursing course. He was employed as a security guard and, his Counsel submits and the Tribunal accepts, paid taxes.
In the papers before the Tribunal was evidence that LVMF was a very promising soccer player as a teenager, and it appears that he would have gone on to compete at a higher level had not a physical injury ended his playing career. There were positive testimonials about his work with disadvantaged youth through Football United. This is evidence of a positive and prosocial contribution to the community.
The Applicant has parents and six siblings in Australia. Apart from his mother, Ms WS, the Tribunal heard evidence from Ms AH, the Applicant’s fiancée. In the papers before the Tribunal were statements from other siblings.
Ms AH told the Tribunal she first met LVMF on the social media platform ‘TikTok’ in October 2021. She said they started to exchange messages and built up a rapport. They then traded each other’s ‘Instagram’ addresses. Two weeks after that, Ms AH said that they exchanged phone numbers and spoke together.
Ms AH confirmed to the Tribunal that there was a mutual decision between her and LVMF to start a relationship with a view to marriage in the future. She explained that this was because women and men cannot, in her and the Applicant’s culture, freely speak together unless they have settled on a form of commitment. They each described the other as fiancé and fiancée.
Ms AH said that LVMF had told her about his offending and that “he had not treated girls properly”. Ms AH said she is a permanent resident and told the Tribunal she was in the early stages of seeing about applying for Australian citizenship. In her statement, Ms AH said that she had come to Australia after being granted a woman at risk visa. She said her husband had disappeared in Iran and she believed him dead. Ms AH told the Tribunal she has two sons, one aged 18 and the other aged 20. She said she had spoken to her sons about LVMF’s offending, but “I didn’t unpack it – I haven’t given them too much of the detail. But I have told them.”
The Tribunal asked Ms AH directly about what she thought her sons would think once they knew the detail and that LVMF had pleaded guilty. She responded:
In my opinion, LVMF committed these offences when he was as young as one of my sons. I don’t think they would show a big reaction. Anyone young can make mistakes. Everyone may make mistakes in their history. The important thing for me was that he was guilty and remorseful. I saw that in his behaviour.
Mr Zipser asked Ms AH what her present understanding was of the offences for which LVMF went to prison. She responded:
I know to the extent that there has been some sexual violence. By that I mean that the women were not happy. He was of an age that he could not control his sexual desires. He kissed them but the girl was not happy. I know that there was more than one. I know that there wasn’t any sex involved, I know that he did some other things as well.

The Tribunal accepts that LVMF has made some positive contributions to the community in sport and for a brief period in employment. The Tribunal notes that there is a June 2022 statement from Mr JT. Mr JT is the manager of a tobacconist. He writes that he would be prepared to offer LVMF employment if he is released into the community. Mr JT wrote that he has known the Applicant since they were at high school together and was fully aware of his criminal offences, and had visited him several times when LVMF was in gaol.
The Tribunal also accepts that LVMF has a loving and supportive family in Australia, as evidenced by his mother giving oral evidence at the hearing and other family statements in evidence. His father provided an extensive written statement and recorded how he had visited his son in prison regularly and has kept in daily contact since he has been in immigration detention.
In respect of Ms AH, the Tribunal accepts that she has a genuine relationship with the Applicant, but it is one at a very early stage. She has not met him in person (and as he was transferred to Christmas Island Immigration Detention Centre (‘IDC’), that is understandable). She gave evidence that her parents, who live in Iran, and the Applicant’s parents, have met by video-link as part of the process of formalising her and LVMF’s relationship. In the papers was an affidavit from a brother of the Applicant, Mr HT. He said he had met Ms AH on several occasions. That is indicative to the Tribunal that the families are supportive of the connection, but it is a relationship that is very new and yet to fully develop.
The Tribunal finds that this sub-consideration weighs in favour of revoking the mandatory cancellation of the visa, especially because all of LVMF’s close relatives are in Australia and he has no ability to reunite or meet up with any others that may live in Iraq.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
LVMF has a short work history. He told the Tribunal that his work as a security guard was part-time, for two or three days a week. However, he had successfully completed his HSC and was studying at TAFE, which is a good sign that he wanted to improve himself and his employability. The Tribunal does not find that LVMF being removed from Australia would have the effect of ‘significantly compromising’ an important service or major project. This sub-consideration, therefore, weighs neutrally.
However, overall, the Links to the Australian community consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
SPECIAL CONSIDERATIONS
As mentioned above, the task of the Tribunal is not circumscribed by the contents of the Direction. Where a claim is reasonably articulated that is relevant to an applicant’s circumstances, the Tribunal should consider it. The Tribunal finds that two special considerations rise to the level warranting specific attention – the prospect of LVMF being in prolonged immigration detention and the impediments if the Applicant was removed from Australia to a third country.
Special consideration – prospect of prolonged detention
Section 189 of the Act imposes on officers of the Department a requirement to detain a non-citizen in the migration zone (i.e., in Australia and prescribed territories) if the officer ‘knows or reasonably suspects’ that the person is an unlawful non-citizen.
Section 196 of the Act concerns the duration of detention. It relevantly provides that, in a case of a non-citizen like LVMF whose visa has been cancelled under section 501, the detention is to continue unless a court finally determines that the detention is unlawful or that the person is not an unlawful non-citizen. Section 14 of the Act provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Section 198 provides, among other things, that an officer must remove an unlawful non-citizen from Australia ‘as soon as reasonably practicable’ if the person’s visa has been cancelled under section 501(3A) and the Minister has decided not to revoke the cancellation of the visa (see section 198(2B)(c)(ii) of the Act).
In May 2021, the Act was amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021. That amending legislation modified section 197C of the Act to ensure that it does not ‘require or authorise’ the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless (i) the decision finding that the person engages protection obligations has been set aside; or (ii) the Minister is satisfied that the non-citizen no longer engages protection obligations; or (iii) the person requests voluntary removal.
Noting that the Respondent accepts in his written and oral submissions that the Applicant is stateless, the RSFIC states that the executive policy of the Government is that LVMF will not be liable for removal from Australia if his visa remains cancelled, and that he will remain in immigration detention while his protection visa application is determined.
In response to submissions made on behalf of the Applicant that he would face ‘indefinite detention’, the Minister submitted that this was speculative because it (a) prejudges the outcome of LVMF’s protection visa application, and (b) that there is no basis to assume that the Minister will not decide to exercise his non-compellable powers under sections 195A or 197AB of the Act. The Respondent further submitted that this contention ignores the possibility of being resettled in a safe third country.
Section 195A provides that the Minister may grant to a person who is in immigration detention a visa of a particular class (regardless of whether the person has applied for the visa), if the Minister considers it is in the public interest. Section 197AB of the Act also contains a power for the Minister to make a residence determination that an unlawful non-citizen resides at a specified address, rather than remain in an IDC, and the Minister may specify conditions with which the person must comply. Such a determination may only be made under section 197AB(1) if the Minister thinks it is in the public interest so to do.
Mr Zipser drew the Tribunal’s attention to two documents from the Department’s website, PAM 3 – Minister’s residence determination power (dated 10 October 2017) and PAM3 – Minister’s detention intervention power (dated 2016). The Tribunal pointed out that a previous minister made these guidelines but that they may be relevant, noting that it is always open to a successor minister to issue new guidelines. Mr Burke conceded that these were the current relevant documents on the Department’s website.
Mr Zipser submitted that it was unlikely that LVMF would be considered for a residence determination under section 197AB, noting that the guideline contains, under the section about cases that should not generally be brought to the Minister’s attention, a dot point ‘Where it is believed that a person presents character issues that indicate they may fail the character test under section 501 of the Act’. Mr Zipser further submitted that LVMF would be unlikely to be considered under the section 195A power where the guideline states that cases that generally would not be brought to the Minister’s attention include ‘people whose visa has been refused or cancelled under section 501 of the Act’.
The Tribunal accepts that these guidelines place LVMF in the category of a person whose case would not ‘generally’ be brought to the Minister’s attention for the exercise of his personal discretionary powers to either grant another visa or issue a residence determination. However, both guidelines make very clear that the Minister’s personal discretion in each of these areas is unfettered, and the very fact that the qualification word ‘generally’ is included in both guidelines makes clear that they are not directive to officers of the Department not to bring such cases to the notice of the Minister.
However, the Tribunal accepts that the reality of the situation is, in the absence of any evidence to the contrary, it would be unlikely that LVMF’s case would be brought to the Minister’s attention in the normal course. He is someone who has failed the character test and whose visa was mandatorily cancelled because of that fact. He has been convicted of very serious sexual offences, including one offence against a minor. Balancing that is the fact that the Minister’s Department accepts LVMF is stateless and that a protection finding has been made in relation to him (albeit not yet a protection visa granted).
The Applicant submitted (in the ASFIC and reiterated in supplementary closing submissions) that “it would be a contrary to Australia’s obligations under the ICCPR if the Australian government condemned the applicant to indefinite detention in Australia”. The Applicant further quoted the supplementary explanatory memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014, which relevantly states:
The right to security of the person and freedom from arbitrary detention is contained in Article 9 of the International Covenant on Civil and Political Rights (ICCPR).
‘Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
... The Australian Government’s position is that the detention of individuals requesting protection is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable.
In the context of Article 9, detention that is not ‘arbitrary’ must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved.
...
This Bill does not limit a person’s right to security of the person and freedom from arbitrary detention ... Any questions of proportionality will be resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a person’s visa, or whether to revoke a mandatory cancellation decision.
...
The detention of a person under these circumstances is considered neither unlawful nor arbitrary under international law. The Government has processes in place to mitigate any risk of a person’s detention becoming indefinite or arbitrary through: internal administrative review processes; Commonwealth Ombudsman Own Motion enquiry processes, reporting and Parliamentary tabling; and, ultimately the use of the Minister personal intervention powers to grant a visa or residence determination where it is considered in the public interest.
The Applicant submitted that the wording in the explanatory memorandum “appears to suggest that indefinite detention would be ‘arbitrary’ in contravention of Art 9 of the ICCPR.”
Mr Zipser also raised the decision of Senior Member Redfern (as she then was) in Re: RCLN and Minister for Immigration and Citizenship [2011] AATA 418 (‘RCLN’), where she said: “if the Tribunal forms the view that Australia’s obligations under the ICCPR and the CAT are invoked, the Tribunal must set aside the decision to cancel a visa.”
When RCLN was raised during the hearing, the Tribunal remarked that it would be read, but noted that it was a decision more than ten years old, and there have there been several amendments to the Act since 2011. There has also been significant case law in this area since that time. The Tribunal also remarked that Plaintiff M1-2021 is authority for the fact that it is not a mandatory consideration for the Tribunal to make findings about international law where the relevant provisions are not enacted in Australia’s domestic law. The Tribunal has since had an opportunity to read RCLN and notes that sentence quoted above in the Applicant’s submissions begins (paragraph [77] of the reasons), importantly, with the words “On the true construction of Direction 41…”. That conditioned SM Redfern’s finding. Direction No. 41 has significantly different wording from that in the current Direction, so I do not consider that RCLN is now a useful authority.
Mr Zipser also submitted that because of the length of delay in the Department considering LVMF’s representations under section 501CA and the lengthy consideration of his application for a protection visa (still not concluded), these also amount to breaches of the ICCPR and the CAT. The Tribunal does not accept these contentions. While it is quite reasonable for the Applicant’s legal representatives to raise delays that affect their client, and while it is always better for such matters to be dealt with expeditiously, I do not find that the delays have been inordinate. The delays have also not been capricious, with the backdrop that LVMF is pursuing his entitlement to administrative review of the section 501CA cancellation of his visa and has made, and can continue to make, claims to support the grant of a protection visa to him.
The Respondent submitted that Plaintiff M1-2021 confirmed that as a point of constitutional principle, an international treaty can operate as a source of rights and obligations under domestic law if, and to the extent that, Parliament has enacted it, and that otherwise Australia’s obligations under the Refugees Convention, the CAT, the ICCPR and the Convention on the Reduction in Statelessness have no force in domestic law and cannot be relied upon as a source of rights and obligations. The Tribunal accepts the Minister’s submissions in that regard as properly reflecting the High Court’s judgment in Plaintiff M1-2021.
Mr Zipser raised the fact that LVMF was moved from Villawood IDC to Perth IDC and then Christmas Island IDC, thus preventing his family from visiting him, and that this also amounted to potential breaches of Articles 7 and 9 of the ICCPR. The disposition of an applicant in detention is not a matter within the competence of the Tribunal; it is an administrative matter for the Minister’s Department. To the extent that it may affect an Applicant’s ability to have personal contact with family, that is a factor that can fairly be raised in submissions (and has been in this case), but, by itself, the Tribunal does not conclude that the relocation of LVMF is ‘arbitrary’ detention in terms of the ICCPR, nor that it falls within the compass of the CAT.
In summary, the Tribunal does not accept the Applicant’s submissions at the hearing that lawful detention of an illegal non-citizen amounts to ‘torture’ in terms of the CAT or cruel or inhumane punishment. It cannot be said that the detention of an illegal non-citizen within a state’s territory is ‘arbitrary’. In respect of the Statelessness Convention, the Respondent pointed out that a contracting state shall not expel a stateless person who is lawfully in their territory save on the grounds of national security or public order (Article 31). The Respondent submitted that LVMF would not be ‘expelled’ from Australia in the event the reviewable decision is affirmed, nor that he would be ‘lawfully’ in Australia, because his visa would remain cancelled. The Tribunal agrees with this submission.
The Tribunal notes that the papers before it record that LVMF was approved for the grant of Australian citizenship in December 2013, but that approval was cancelled when he failed to make the pledge of commitment and did not provide a reason for failing to do so. In the papers, it was alleged that when the Department wrote to him to inquire as to why he had not made arrangements to make the pledge, they ‘knew he was incarcerated’. This argument was not advanced orally at the hearing. In any event, the evidence supports that this approval was cancelled under section 25 of the Australian Citizenship Act 2007 (‘the Citizenship Act’). Regardless of whether the Department knew of LVMF’s arrest in early 2014, the Tribunal considers (without making a finding) that the good character provisions of section 25(2)(b)(iii) of the Citizenship Act would have been relevant, regardless of whether the Applicant had failed to make the pledge.
It would be pointless for the Tribunal to make a finding that the Minister would be likely, or not likely, to exercise one of his personally available powers under the Act in relation to LVMF. However, the Tribunal does make a finding that LVMF is likely to be subject to prolonged immigration detention until either (a) he is granted a protection visa; or (b) he is refused one and is either (i) sent to a third country or (ii) one of the personal discretionary powers is exercised.
A useful discussion, albeit in a slightly different context, can be found in the recent judgment of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, and especially at paragraphs [43] and [60] of that decision, about options for a person who might find themselves in prolonged detention. Notably, the applicant, in that case, is different from LVMF because he had been refused a protection visa.
Use of the word ‘indefinite’ in terms of detention for LVMF is unhelpful, unless it is clear that it does not mean ‘without end’ but means, in fact, ‘without a known end-point’. This is not a semantic point, because it is no solution in any migration regulation system for a person to be left in permanent limbo. The Tribunal considers that a person is entitled to the sureness of an outcome, and prolonged detention militates against that.
In this regard, the Tribunal notes that in 2016 a mental health report recorded that LVMF has “no current mental health issues” (Exhibit R3, p 17). In September 2019, another New South Wales Corrective Services report recorded “Nil mental health history” (Exhibit R3, p 38). In October 2019, a report recorded “[LVMF] states he has never have [sic] poor mental health and is not on any medication.” (Exhibit R3, p 41).
Mr Luke Brabant, a psychologist, wrote a report on the Applicant in November 2020. He relevantly recorded (Exhibit R3, p 266):
Despite experiencing a number of traumas and adverse experiences through his childhood (e.g., sexual abuse, poverty, statelessness, war), [LVMF] appeared to develop into a relatively well-adjusted adult free of serious health concerns.
Balancing this conclusion is the fact that a counsellor with STARTTS, having seen LVMF, wrote in March 2021 that he expressed feelings of helplessness, despondency and severe insomnia (Exhibit R1, p 411). A mental health nurse recorded in a routine mental health screening in September 2021 that LVMF was experiencing anxiety and depression because of the lack of certainty about his visa review outcome, and his knowledge that he was stateless and could face prolonged detention. There is also a reference (Exhibit T1) to “mild PTSD”. The Tribunal notes the Applicant was telling a therapist that he had some childhood sexual abuse in Iraq when young at the hands of a tutor, but he had tried to look past that. When a therapist raised it, he also considered that some of his childhood traumatic experiences might have had some enduring effect, but generally regarded himself as robust and relied on a strongly supportive family when he felt ‘down’. It is axiomatic to the Tribunal that, even with a person without a diagnosis of a mental health condition, lack of certainty about a migration outcome, coupled with the prospect of prolonged detention cannot be other than detrimental.

However, in this case, as set out above, LVMF’s application for a protection visa has not been decided, and he is able to make (further) submissions to the Department for a delegate to consider in that regard. The fact that he is stateless would no doubt be a central point of any representations.
The Tribunal will make one point that the Respondent’s submission that LVMF might seek to be ‘voluntarily returned’ seems ill-based. Given that the Minister accepts the Applicant cannot be returned to Iraq, this contention invites the question: voluntarily ‘returned’ to where?
Special consideration – Impediments if removed to another country
The ASFIC submitted that LVMF faced significant challenges if he is removed to another country, citing that he ‘has no money’; has no family other than those in Iraq or Australia; and has never lived in any country other than Iraq, Syria and Australia.
The RSFIC noted that the evidence supports that LVMF is of ‘prime working age, has work experience in the form of sports training and teaching, cleaning, food and hospitality, forklift driving and security work, and has past experience adapting to living in a foreign country’.
What third country LVMF might potentially be settled in, in the event that his visa is not restored, is a matter of pure speculation. Therefore, it cannot be assumed that such a country would necessarily be English-speaking, nor can it be known whether the country would have an accessible social welfare system. While the Tribunal accepts the Minister’s submissions that LVMF is a young man who has shown some aptitude for study and is in good health, it is arid to suggest that he would not face impediments in establishing himself and finding employment in another country when that third country is unknown. He may face language or cultural barriers in this hypothetical country, and he would not have members of his family to support him. In this circumstance, the Tribunal finds that this special consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the Applicant’s visa.
SUMMATION
The Tribunal has considered each of the primary and other considerations set out in the Direction. The Tribunal has also determined that two other special considerations are relevant to the Applicant.
In respect of the primary consideration relating to the protection of the Australian community, this consideration has been found to weigh heavily against revoking the mandatory cancellation of the visa. While there is probably a lower risk of the Applicant offending against a minor, the expert evidence remains that there is a moderate risk of him re-offending in terms of a sexual crime, and the Tribunal finds that a moderate risk is an unacceptable risk. The primary consideration relating to family violence is not relevant and weighs neutrally. The primary consideration about the best interests of minor children in Australia affected by the decision weighs in favour of the Applicant, but not heavily because the children involved are not his own, and it was conceded he does not have a day-to-day role in their upbringing. The primary consideration relating to the expectations of the community weighs heavily against revocation because of the aggravating features of the offending and because, although he has no long history of offending, he did commit a series of sexual assaults in a short space of time.
In respect of the other considerations, the Tribunal does not make a finding about whether international non-refoulement obligations are invoked, other than to say that the Minister concedes and the Tribunal accepts that a protection finding has been made in the Applicant’s favour. However, this is not determinative because the Applicant has applied for a protection visa and his protection claims, both those accepted and others he may make, will be assessed in greater detail as part of that process. The accepted fact that he is stateless will be relevant in this consideration.
The consideration relating to the impact on victims is not relevant and weighs neutrally. The consideration relating to links to the Australian community weighs relatively heavily in favour of the Applicant and revocation, because all his close family are in Australia and he cannot return to Iraq where other relatives may reside. In addition, he has a fiancée in Australia who is a permanent resident and, although it is insipient, the Tribunal accepts that LVMF and Ms AH have formed a genuine relationship.
In respect of the special considerations, the Tribunal considers that both – the prospect of prolonged detention and impediments LVMF may face if removed to another country – weigh in favour of revoking the mandatory cancellation of the visa.
The Tribunal, having considered all the considerations listed here, the primary, other, and special considerations, finds that the two primary considerations – particularly the primary consideration relating to protection of the Australian community – which weigh against the Applicant are not outweighed by other considerations that may weigh in his favour. The Applicant committed serious sexual offences with reckless disregard for the victims. The fact that he only latterly seemed to have come to terms with his culpability for the offences and that he still, in the Tribunal hearing, contested facts about his offending found by the Court is disturbing. This background, coupled with the expert opinion that he presents as a moderate risk of re-offending in a similar manner, also outweighs the relatively strong arguments put by his representatives about prolonged detention and his stateless situation.
The conclusion of the Tribunal is that the reviewable decision was correct in law and that the discretion is not enlivened that there is another reason under section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the visa.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........................[sgd].............................................
Associate
Dated: 3 August 2022

Dates of hearing: 20, 21, 22 July 2022

Date final submissions received: 1 August 2022

Counsel for the Applicant: Mr Benjamin Zipser

Solicitors for the Applicant: Buttar, Caldwell & Co.

Advocate for the Respondent: Mr Cormac Burke

Solicitors for the Respondent: Sparke Helmore Lawyers
ANNEXE
Schedule of Exhibits
‘GD’ documents lodged by the Respondent  Exhibit R1
Respondent’s (First) Tender Bundle of 24 June 2022          Exhibit R2
Respondent’s (Second) Tender Bundle of 11 July 2022      Exhibit R3
Affidavit of the Applicant of 28 June 2022  Exhibit A1
Applicant’s Tender Bundle of 15 July 2022  Exhibit A2
Affidavit of Ms WS of 22 June 2022  Exhibit A3
Affidavit of Ms AH of 22 June 2022  Exhibit A4
Incident reports and IHMS records – 20 July 2022               Exhibit T1

Dates of hearing:	20, 21, 22 July 2022
Date final submissions received:	1 August 2022
Counsel for the Applicant:	Mr Benjamin Zipser
Solicitors for the Applicant:	Buttar, Caldwell & Co.
Advocate for the Respondent:	Mr Cormac Burke
Solicitors for the Respondent:	Sparke Helmore Lawyers