MQGZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1017
•8 May 2024
MQGZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1017 (8 May 2024)
Division:GENERAL DIVISION
File Number:2024/0960
Re:MQGZ
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:8 May 2024
Place:Perth
The Reviewable Decision is affirmed.
...............[Sgd]......................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – partner visa cancellation – character test – Applicant convicted of a sexually based offence involving a child – Applicant is a 40-year-old citizen of Pakistan who arrived in Australia as a 30-year-old – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence conduct – strength, nature and duration of ties to Australia – no minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to Pakistan – impact on victims – impact on Australian business interests – Tribunal satisfied that discretion should be exercised to cancel the Applicant’s Visa – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35(3)
Community Protection (Offender Reporting) Act 2004 (WA) s 9(a)
Migration Act 1958 (Cth) ss 197C, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(1), 501(2), 501(6), 501(6)(e),501(6)(e)(ii), 501CA, 501CA(4), 501G(1)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.3(4),8.3(4)(a)(i), 8.3(4)(a)(iii),8.4, 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
8 May 2024
BACKGROUND
The Applicant is a 40-year-old man who was born in Pakistan. He arrived in Australia on 20 May 2014 as the holder of a Partner (Subclass 309) (Provisional) visa. He has only departed Australia for seven weeks in 2017 since his arrival (G9/81).
The Applicant was granted a Class BC Subclass (Spouse) visa (Visa) on 6 July 2018 (G10).
On 5 September 2023, the Applicant was sentenced in the Perth District Court to a community-based order of 10 months concurrent for “incites a child over 13 and under 16 to engage in sexual behaviour”. As a result, he was made a reportable offender and a violence restraining order was issued to protect the victim (R2/1; G5/61).
On 7 December 2023, the Department of Home Affairs (Department) issued the Applicant with a notice of intention to consider cancellation (NOICC) of his Visa under s 501(2) of the MigrationAct 1958 (Cth) (Migration Act). The NOICC stated that the Department had information to suggest he did not meet the character test by virtue of s 501(6)(e)(ii) because he had been found guilty or had a charge proved of a sexually based offence involving a child (G10). He was invited to comment on the information which indicated he may not pass the character test, and to provide reasons why his visa should not be cancelled even if he did not pass the character test (G10).
The Applicant appointed a lawyer, Mr Ramzan Ali, who is representing him in these proceedings. His lawyer sought two extensions of time to respond which were granted (G11, G12, G14).
On 31 January 2024, Mr Ali provided a submission arguing that the Applicant is of good character, a statutory declaration from the Applicant and two character references to the Department (G14).
However, on 12 February 2024, a delegate of the Minister decided to exercise discretion under s 501(2) of the Act to cancel the Applicant’s Visa (G3/18). This is the Reviewable Decision currently before me.
The Reviewable Decision was emailed to the Applicant’s legal representative on 15 February 2024 (G3/15).
On 12 February 2024 the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2). He was therefore within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 15 February 2024, meaning that I must decide this application on or before 9 May 2024.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that discretion should be exercised under s 501(2) of the Migration Act to cancel the Applicant’s Visa.
THE HEARING AND THE EVIDENCE
This application was heard in person on 15 and 16 April 2024.
The Applicant was represented by Mr Ramzan Ali of R.A Lawyers & Migration. The Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers.
The Applicant gave evidence at the hearing in person.
The Applicant called the following witnesses who gave evidence at the hearing:
·The Applicant’s wife, HG.
·Mr AMob, a friend of the Applicant’s.
·Mr ST, a friend of the Applicant’s.
·Mr AMoh, President of an association I have de-identified as the Ethnic Community Association (Association).
I admitted the following documents into evidence at the hearing:
(a)Attachments to the Applicant’s Statement of Facts, Issues and Contentions filed 15 March 2024 (Exhibit A1);
(b)Statutory declaration of HG dated 21 March 2024 (Exhibit A2);
(c)Section 501 G Documents, labelled G1-G15, comprising pages 1-138 (Exhibit R1); and
(d)Summons Bundle, labelled SB1-SB3, comprising 207 pages.
I also had before me the:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) lodged on 15 March 2024;
(b)Respondent’s SFIC dated 28 March 2024; and
(c)Applicant’s Reply dated 9 April 2024.
On 3 May 2024 I made a confidentiality order under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) so that information that would identify the Applicant and any witnesses would not be published and the Applicant was given the pseudonym, MQGZ. I was of the view that it would be appropriate to do so because of the Applicant’s stated intention to apply for a protection visa in the future if he is unsuccessful in this application.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(1) and (2) of the Migration Act provide:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
(Original emphasis.)
Subsection 501(6)(e) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
…
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; …
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(1), (2) and (4) being relevant to the current application:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
…
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501 …”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
In summary, s 501(6)(e)(ii) of the Migration Act provides that a person does not pass the character test if they have been convicted of one or more sexually based offences involving a child.
The Applicant does not pass the character test due to the operation of s 501(6)(e)(ii) of the Migration Act because he has been convicted of a sexually based offence involving a child. The Applicant pleaded guilty to “incites a child over 13 and under 16 to engage in sexual behaviour”, and on 5 September 2023 he was sentenced in the Perth District Court to a 10-month community-based order.
The Applicant’s representative, Mr Ali, made written submissions to the Department, and in the Applicant’s SFIC, arguing that he passed the character test. However, Mr Ali conceded at the hearing that the Applicant did not pass the character test due to the operation of s 501(6)(e)(ii) of the Migration Act. I agree that the Applicant fails the character test as a matter of law due to the operation of s 501(6)(e)(ii) of the Migration Act.
Therefore, I must consider whether discretion should be exercised to cancel the Applicant’s Visa under s 501(2) of the Migration Act with reference to the primary and other considerations in Direction No 99.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has only been convicted of one criminal offence, namely the “incites a child over 13 and under 16 to engage in sexual behaviour” offence committed on 5 January 2023, which he was sentenced for in the Perth District Court on 5 September 2023. The facts of the offence were summarised by the Sentencing Judge (G5/55-56) as follows:
… at approximately 1.15pm on Wednesday, 5 January 2022, you were at the Gosnells Train Station in your car.
The victim, who is a female and 15 years of age at the time, arrived at the train station after getting off the train and walking towards the bus station and sitting down. Whilst sitting down, she was facing away from the road and had her back to the road. You then drove past the victim slowly in the bus lane. You then did a further loop, again driving slowly in the bus lane past the bus stop, stopping, getting out, walking around the victim, and then returning to your car and driving off.
You did this a third time. This time you wait in your car in the bus lane for approximately three minutes before you get out of your car and then approach the victim. You then place a handwritten note on her skirt without saying anything further. … The note said:
$400, sex in car now, okay?
And then your mobile phone number ending in [three digits omitted]. I note that your mobile phone number was written down twice. You then drove off. The victim got on the bus. You followed the bus she was on until it arrived at Cockburn Train Station. At the Cockburn Train Station you again slow your car as you drive past the victim, who’s walking away from the bus station.
The victim was picked up by a friend, and the closed-circuit television captures your circling the car park looking for the victim. The victim was unaware that you had followed her from the Gosnells Train Station to the Cockburn Bus Station. You were arrested four days later. You were interviewed and made some admissions. Analysis of your phone indicated that on 5 January 2022, you were contacting various people that day for sex.
The sentencing Judge continued (G5/56):
The aggravating features of your case are that the word insight [sic] means that you were encouraging or trying to persuade, that the attention that you provided to the victim in this case was unwanted, and there was nothing that she did by words or conduct to indicate to you that she wanted this sort of contact from you, that there was a significant age disparity of 22 years.
Now, there was nothing, as I’ve already indicated that she wanted such an invitation from you. She was alone at the bus station. She was alone at the bus station. This has clearly had an effect on her. Judging by her Snapchat message … she’s clearly offended by what you’ve done and obviously, for want of a better word, grossed out.
It was persistent because you followed her, and I accept that in following her you did not approach her a second time at the Cockburn Bus Station, and from the note, it’s clear what your intention was, is that you wanted to have sex with the victim. Now, I’ve watched the CCTV footage, including observing the victim’s conduct and her physical appearance. I would agree with how the State has described her. She appears to me to be a young girl.
I’m unable to say with any certainty how young she may be, and so your error and the criminality of your behaviour on this occasion was that you did not make an inquiry, and the risk from your conduct is that if such an approach was made to a young person, the risk is always that the young person may have been tempted by the offer of money to engage in sexual conduct that they are not legally able to consent to, and that is something that is aggravating in your case.
For the reasons I explain below under the primary consideration on family violence, I am satisfied that the Applicant has committed acts of family violence against his wife, HG. HG was an honest and forthright witness, and I accept her evidence about the Applicant’s family violence conduct towards her. I explain this conduct in further detail under the family violence primary consideration below, however I note here that the conduct included pulling HG’s hair, slapping her face, strangling her until she nearly passed out and punching her in the eye (transcript/73-74; R2/3-6).
Paragraphs 8.1.1(1)(a) and (b) of Direction No 99 provide that certain types of offending or conduct should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). That conduct includes “sexual crimes”, “crimes committed against vulnerable members of the community” and “acts of family violence”.
The Applicant’s “incites a child over 13 and under 16 to engage in sexual behaviour” offence is a sexual offence, as well as being an offence against a child. Children are vulnerable members of the community. This is reflected in this type of conduct being made a criminal offence by the legislature to protect children who are too young to consent. I therefore find that offending to be very serious.
I also find that the Applicant’s family violence conduct committed against his wife to be very serious. As well as the Direction providing guidance in that regard, the very nature of that conduct had the potential to kill, or permanently injure his wife, which supports a finding that it should be regarded as very serious.
The Applicant was not sentenced to a term of imprisonment for his “incites a child over 13 and under 16 to engage in sexual behaviour” offence (para 8.1.1(1)(c) of Direction No 99). He was sentenced to a community-based order for a period of 10 months. He was also a reportable offender under s 9(a) and Schedule 1 of the Community Protection (Offender Reporting) Act 2004 (WA), and the sentencing Judge imposed a lifetime violence restraining order to protect the victim (G5/60-61). The sentencing Judge noted that the maximum penalty for the offence was 14 years imprisonment, which she stated to the Applicant when sentencing him, “tells you how serious the offence you committed is” (G5/55).
Regarding the frequency of the offending and whether there is a trend of increased seriousness (para 8.1.1(1)(d) of Direction No 99), the Applicant has only been convicted of the one criminal offence being the “incites a child over 13 and under 16 to engage in sexual behaviour” offence. I address the frequency of family violence conduct under that primary consideration below.
There is no cumulative effect of the Applicant’s criminal offending. He attended court and was sentenced to a community-based order for his criminal offence. I address any cumulative effect of family violence conduct under that primary consideration below (para 8.1.1(1)(e) of Direction No 99).
There is no evidence to suggest the Applicant has provided false or misleading information to the Department of Home Affairs (para 8.1.1(1)(f) of Direction No 99).
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has not received any prior warnings.
Where the offence or conduct was committed in another country, paragraph 8.1.1(1)(h) of Direction No 99 requires me to consider whether that offence is an offence in Australia. The Applicant’s offence, and his family violence conduct, was committed in Western Australia and so this sub-paragraph is not applicable.
The Applicant has only been convicted of one criminal offence, which was a non-contact sexual offence against a child for which he received a community-based order. Nevertheless, I find that the offence is serious. I am satisfied that he committed family violence conduct against his wife, including the very serious offence of strangulation which could have resulted in a loss of life, or serious and/or permanent injury. I therefore find that this conduct is very serious.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly in favour of exercising the discretion to cancel the Applicant’s Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should she engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
If the Applicant was to commit another offence such as the “incites a child over 13 and under 16 to engage in sexual behaviour” offence, the harms that could result to members of the Australian community are potentially very serious and could include psychological or physical harm.
Similarly, if the Applicant committed further family violence offences, the harms could include serious physical injury, temporary or permanent impairment or even loss of life. Family violence offending may also result in psychological harm to victims.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
There are some factors in the Applicant’s favour that suggest he may be a low likelihood of reoffending. He does not have a lengthy criminal history; he only has one criminal conviction. His family violence conduct stopped after his wife made a complaint to police who issued a 72-hour police order on 25 November 2018 (R2/8). He does not have any issues with drugs or alcohol. He is a bricklayer, and the evidence shows that he is a hard worker. He is likely to be able to resume his employment as a bricklayer if his Visa is granted. Employment can be protective, although the Applicant’s employment and his desire to provide for his wife financially did not prevent him from committing the offence.
The Applicant has sought to explain that his offending was due to the immense stress and issues in his marriage caused by the difficulty the couple had conceiving a child, including six failed IVF cycles and the Applicant’s wife giving birth to a stillborn baby when the pregnancy was at six months. The sentencing Judge remarked that, as a result, the Applicant “sought comfort from sex workers”, although at the Tribunal hearing the Applicant denied ever using sex workers (G5/57; G14/104; transcript/40). The Applicant and his wife have paused IVF treatment because he is in immigration detention, but they are likely to resume it if the Applicant is released into the Australian community. Thus, those pressures and the strain on their relationship is likely to continue and the Applicant does not appear to have a strategy in place, such as attending counselling, to deal with this stress in the future.
I note that the sentencing Judge was of the view that the Applicant was a low risk of reoffending and that he did not have any sexual interest in children (G5/59). Her Honour stated:
I’m prepared to find … that firstly, this offence was out of character for you. Secondly, that you do not have any sexual interest in children and that thirdly, you are of low risk of future reoffending, especially if you’re prepared to do a short program explaining some matters about sexual things.
The Applicant’s community-based order commenced on the day of sentencing, 5 September 2023, but he has not undertaken a program of the type recommended by the sentencing Judge, nor any other rehabilitation. The Applicant claimed to have completed rehabilitation when he reported to Adult Community Corrections who were of the view that he has changed and was cured (transcript/15). However, the case notes from the Applicant’s case manager whom he had regular meetings with as part of his community based order do not show that the Applicant undertook any rehabilitation. A case note finalised on 1 November 2023 (G8/76-77) stated that the Applicant was informed he may be contacted for further assessment in relation to a sex offender treatment program, but for now, Adult Community Corrections were looking into further options. He was also provided paperwork for “life without barriers (culturally appropriate service)”, but this did not go any further. The case notes also show that the Applicant denied his offending, and that any regret was due to his own situation and not for the victim.
For example, a case note finalised on 14 September 2023 (G8/68-69) states that:
Mr [Applicant] continues to deny his offending therefore explaining the program and supervision requirements have remained challenging.
…
Continued to state he has discussed returning the order to the Court with his lawyer as he would rather pay the fine.
He said having to attend all these appointments makes him feel guilty – when asked why he said it impacts his wife as she thought the case was over.
Not clear how much information his wife is aware of – noting he often directs conversation to the fact the couple cannot have children and have given up on IVF.
A case note finalised on 5 October 2023 (G8/71-72) states that:
Difficulty getting through interview as Mr [Applicant] frequently took the conversation off track.
Mr [Applicant] maintains his denial of the offending therefore limited progress was made around this treatment need.
Mr [Applicant] verbalised his defiance for Australian culture and asserted his family and community follow hazara religion which has restrictions for woman and some men also.
…
Mr [Applicant] advised he is often around children – at his community groups and in ‘joint family’ situations. Reminded he cannot be unaccompanied with children however he failed to acknowledge this.
Another case note that was finalised on 17 October 2023 (G8/74-75) states:
Mr [Applicant] initially presented similar to previous reports; combative and dismissive of CM [case manager]; the conversation and his Order.
CM produced the JSR and SOMF and discussed these with him – Mr [Applicant] informed he had agreed to the story concocted by the lawyer as he thought he would receive a fine.
…
… it was ascertained Mr [Applicant] felt shameful that he had brought this attention to his community and himself – when he had previously held himself to a high standard.
He reported feeling guilty due to having discussions with the Court and CM about the sexual conduct noted in the JSR as culturally he would not discuss this with a female.
Mr [Applicant’s] shame and guilt did not appear to be related to the offence (which he continues to deny) but to be around betraying the religion and culture he worked very hard to uphold (providing for his life, financially supporting his family, moving to Australia, praying as required etc). …
The case note made by the Applicant’s case manager finalised on 1 November 2023 suggests some minor progress. The relevant part states, “Mr [Applicant] appeared more open with CM in general, no specific conversations around offending and decision making however slight progress by confirming he will speak to his GP about referral”. Similarly, in a case note finalised on 14 November 2023 (G8/78-79) the case manager recorded, “Overall, Mr [Applicant] presented less combative with his order in general and appeared more open with CM.” Although these last two case notes are more positive than the previous ones, they do not show that the Applicant developed any insight into his offending.
The Applicant’s lack of insight, and indeed lack of credibility, was also demonstrated at the hearing. For example, he was not honest about the extent of his involvement with the Association, saying that the Association had used his house as security and therefore needed to continue with one of his positions on the Board (transcript/57). However, the current President of the Association, AMoh, gave evidence at the hearing that the Applicant had resigned from the Board, currently held no official position within the Association and that he was not a guarantor because the bank had not accepted his house as security.
The Applicant was also not honest with his wife about his offending. He told her that his case was dismissed because nothing was proved and that he would be able to proceed with his citizenship application (transcript/63, 64, 79).
He was not honest with the persons he called as character witnesses either. Mr AMob’s evidence was that the Applicant’s lawyer told him about the offending which he referred to as “the mistake” and that the Applicant had told him about it in approximately March 2024 that he followed the girl, that he was sitting in his car and that the girl had approached him (transcript/83-85).
Mr ST also gave evidence that the Applicant made a “mistake”. He also stated he found out from the Applicant’s lawyer, but that he had also spoken to the Applicant about it. He seemed to be confused about what the Applicant had been convicted of, which he seemed to think was approaching a minor with an invitation (transcript/93-95). In response to the question, “Has [the Applicant] ever told you he is not guilty of a sexually based offence involving a child?”, Mr ST answered, “I – with conversation, he said he made a mistake only” (transcript/93). I also have concerns about Mr ST’s ability to be a pro-social support person to the Applicant because he seemed to struggle to accept that family violence was unacceptable, initially stating that, “everything is fair in love and war” and concluding after several questions that a person who had perpetrated domestic violence could be of good character if he realised it and was not doing it anymore (transcript/97-98).
Mr AMoh, another person giving evidence in support of the Applicant’s good character, who is potentially also a support person, understood the Applicant’s offending to be “sexual harassment” and referred to it as a “big mistake”. Mr AMoh also understood that the 15-year-old victim had asked the Applicant for money for sex. I have some doubt regarding the extent that Mr AMoh can be a pro-social support person. He was dishonest at the hearing about the character reference he wrote for the Applicant. The wording of his letter of support was substantially similar to that of Mr ST. When asked about whether he wrote the letter himself, Mr AMoh first claimed he wrote the letter himself and that he knew to refer to s 501(6)(e)(ii) because he was searching in “google” and it was the law that the Applicant had been convicted under, before admitting that Mr ST may have given him some “information”, and finally that Mr ST “probably” gave Mr AMoh his statement (transcript/106-108).
It is concerning that the Applicant has not been honest about his offending and that he has given these character witnesses who are also support persons a vague and incorrect narrative about his offending. I appreciate that the Applicant may be embarrassed about his offending, but his late disclosure to his character witnesses in anticipation of this hearing, and his attempts to say that the victim approached him, suggest a lack of insight and a lack of acceptance of responsibility for his offending.
The Applicant was also very reluctant to talk about the offending at the hearing. I do not accept his evidence that on the morning of the offending, he sent 10 messages asking for sex to eight different phone numbers “just for fun” after googling something like “free sex” (transcript/30). I also do not accept his evidence that he was not looking to have sex on the day of the offending (transcript/30-31), particularly after he sent those mobile phone messages on the morning of the offending. He also denied following the bus the victim was on, a fact described by the sentencing Judge (G5/56). The Applicant’s explanation was that, “I had something to do and I went toward that direction” and “I had no intention to follow her” (transcript/32). The Applicant was also evasive and would not directly answer questions about why he had approached the 15-year old girl (transcript/34-36). This tends to suggest that the Applicant does not fully accept responsibility for his offending, which suggests some likelihood of future reoffending.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
·The Applicant attempted to minimise his offending to his wife, his character witnesses and to this Tribunal. Indeed, he lacked credibility as a witness and did not fully accept responsibility for his offending and sought to deflect blame onto the victim when he described the offending to two of his character witnesses.
·The Applicant has not undertaken any rehabilitation.
·The Applicant’s meetings with his case manager showed minimal insight and a denial of the offending.
·To the extent that his character witnesses and wife may be support persons in the community, it is difficult for them to do so when the Applicant has not been candid about his offending.
·The Applicant is likely to face the same stressors that contributed to his offending if he resumes attempts with his wife to conceive a child through IVF and if those attempts continue to be unsuccessful.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
·The sentencing Judge believed the Applicant was a low risk of reoffending.
·The Applicant is evidently ashamed and embarrassed by his offending, which may motivate him not to commit similar offences in the future.
·The Applicant can be a productive member of the community, as demonstrated by his employment history and involvement with the Association (although this did not prevent him from offending).
·He does not have a long criminal history, having only been convicted of one offence.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a low likelihood of reoffending.
Overall, after considering the nature of the harm that could result if the Applicant reoffended, and the low likelihood of the Applicant committing further offences, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately in favour of exercising the discretion to cancel the Applicant’s Visa.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 weighed strongly against, and paragraph 8.1.2 weighed moderately in favour of exercising the discretion to cancel the Applicant’s Visa. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly in favour of exercising the discretion to cancel the Applicant’s Visa.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 99 at para 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
The following definition, in para 4(1) of Direction No 99 is relevant:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
The Applicant does not have any convictions for family violence. However, there is information and evidence from independent and authoritative sources upon which I am reasonably satisfied that the Applicant has committed family violence conduct against his wife, HG.
That evidence is a detected incident report dated 25 November 2018 and a 72-hour police order (R2/3-8) issued by police to protect his wife which were substantially corroborated by the evidence of his wife at the hearing. I found HG to be a credible witness. She was honest and forthright in her answers. I am satisfied that her evidence was truthful and that it corroborates most of the content of the detected incidents report and the circumstances surrounding the issue of the police order.
The Applicant’s wife, HG, is a member of the Applicant’s family because she is married to him and had an intimate personal relationship with him, as evidenced by the couple’s unsuccessful attempts to conceive a child.
On 25 November 2018, the Applicant’s wife attended the police station to report family violence conduct by the Applicant. Relevant parts of the detected incidents report (R2/3-6) made by police are as follows:
Reason for attendance:
Victim attended at Gosnells Police Station. Has left the home address for her own safety but didn’t call 000 due to cultural reasons (didn’t want a visible police presence at home address).
Police observations:
Victim was crying and visibly shaking. Observed and photographed what appear to be finger marks around Victim’s neck and a cut to the Victim’s left ear. Victim stated that she was reluctant to involve Police as it would bring shame on her from her community/ culture. Victim knows this behaviour isn’t acceptable but feels bound by cultural boundaries and expectations. Victim declined medical attention.
Accounts obtained:
Victim stated that around 9.30pm on Sunday 25 November 2018 she had been verbally arguing with the POI [person of interest – the Applicant] about money. The POI [person of interest] has grabbed the Victim around the neck and strangled her until she nearly passed out. Victim stated that her hearing went and the POI let go of her. Also stated that the POI hit her in the head causing her earring to cut her ear. Victim stated that POI has threatened her with a knife and told her he will bury her in the back garden. Photo taken of tonight’s injuries. Victim did not wish to make a statement or take any further action. Just wanted a report taken in case of future incidents.
POI stated that they had been verbally arguing but denied hitting the Victim. Stated that the Victim was crazy and couldn’t understand that he was just trying to help his family in Pakistan. POI gathered clothes for work and left the property without incident.
…
72hr police order issued and explained in detail to both parties.
…
The detected incidents report also noted answers of “Yes” to the questions, “Is the abuse happening more often?”, “Is the abuse getting worse”, “Has the Perpetrator ever previously hurt the victim?”, “Has the perpetrator ever previously used weapons or objects to hurt the Victim?”, and “Has the perpetrator ever threatened to hurt or kill the Victim?” (R2/4).
Under the heading, “Behavioural Factors”, police recorded “Victim stated that she just wanted to make a report in case he killed her then people would know it was him” and “Victim stated that she has bruises on her body from previous physical violence from POI she didn’t report” (R2/5).
Under the same heading, the following was stated (R2/6):
Isolation … Victim said that the POI told her that he would call her older brother and her family would be shamed. She feared that this may result in physical violence against her from her brother.
Abuse more often [the Applicant] has obtained his permanent residency in Australia the violence is becoming more frequent and aggressive.
Abuse worse Y
Physical violence used (explain) Y Punching, choking.
…
… Victim stated that POI has used a phone charger in the past to whip her
…
Victim said the physical violence has been ongoing over the last five years since POI moved to Australia but has increased since he received his permanent residency.
The Applicant was asked about this incident report at the hearing. I gave self-incrimination warnings where appropriate. Often the Applicant answered, “no comment”. Sometimes he continued to give an answer after doing so, and sometimes he answered the question. This can be seen in the following exchange (transcript/53):
MS JONES BOLLA: Have you ever told her you would kill her and bury her in the garden?
SENIOR MEMBER: Sorry. Before you answer, the warning applies to this question too.
APPLICANT: The one that you are asking me now, I have no comment.
MS JONES BOLLA: Have you ever strangled her?
APPLICANT: No.
SENIOR MEMBER: Was that a ‘No’ or a ‘No comment’? The warning applies to this as well.
APPLICANT: No. I’m saying, ‘No, I haven’t done anything like this before.’
MS JONES BOLLA: Have you ever hit her in the head?
APPLICANT: No.
MS JONES BOLLA: Have you ever verbally abused her?
APPLICANT: No comment.
MS JONES BOLLA: Mr [Applicant], what the police have recorded in an incident report is that you have done all those things to your wife at some point during your marriage and that once you got your permanent residence visa that that violence increased and escalated. What do you say in respect of that?
SENIOR MEMBER: Again, the warning applies to this question.
INTERPRETER: No comment. No. No comment, and I haven’t done anything like that.
In fairness to the Applicant, I infer that his intention was to answer “no comment” to all the questions concerning family violence conduct. I therefore do not draw any adverse inference from this line of questioning, or from when his answers were inconsistent with HG’s evidence.
HG agreed that she has attended the police station to make the report. HG’s evidence at the hearing was that the family violence conduct included:
·Conduct HG described as “a little bit of beating” which she explained was pulling her hair and slapping her in the face (transcript/73).
·That the Applicant had used a phone charger to whip her (transcript/74).
·The Applicant had punched HG in the eye when they were driving in the car. After that incident she suffered from headaches. She said she went to the GP who gave her tablets, and the headaches went away (transcript/75).
·She has been strangled by the Applicant until she nearly passed out resulting in her neck bleeding and a scar on her neck from her necklace. She also said, “he did some hair pulling”. HG thought the Applicant used the cord of a charger and his hands to strangle her (transcript/72 and 75).
HG’s evidence was that she made the police report because she was fearful that the Applicant might kill her after he had tried to strangle her:
I feel scared. That’s why – I thought maybe he’s going – I’m going to die. That’s why I went to the police station. (transcript/65)
…
If this happen continuously, I’m going to die. That’s why I went there. So after that, he didn’t repeat. (transcript/76)
I find that the Applicant’s conduct in pulling HG’s hair, slapping her face, whipping her, punching her, and strangling her constitutes an “assault” and meets the definition of “family violence” because it is violent behaviour that caused HG to be fearful (para 4(1) of Direction No 99).
HG’s evidence was, however, that the Applicant was joking when he threatened her with a knife, and she did not feel scared. Similarly, she thought he was not serious about killing her and burying her in the garden and she was not scared (transcript/76). Consequently, I do not find those two incidents to constitute family violence conduct because they did not make HG fearful.
HG also agreed with the comments in the detected incidents report that she was reluctant to involve police as it would bring shame on her from her community. She confirmed that the Applicant had threatened to tell her brother so she would be shamed (transcript/74).
As set out above, the police detected incidents report made by HG on 25 November 2018 stated that the physical violence had increased since the Applicant received his permanent residency (R2/6). HG agreed under cross-examination that was what she was thinking at the time (transcript/74). The police report also stated that the violence had been ongoing for the last five years. At the hearing HG could not recall when exactly the violence started but said that it was after the couple had difficulty conceiving a child, and she referred to having operations to remove her fallopian tubes in approximately 2017 and subsequently having nine cycles of IVF (transcript/73). HG said that after she made the police report and the police issued a 72-hour police order, the violence stopped. From this evidence, I find that there were numerous incidences of family violence in approximately 2017 and 2018, (and possibly from an earlier period ending in 2018), and that there was an increase in frequency (para 8.2(3)(a) of Direction No 99).
There appears to be a minimal cumulative effect of the Applicant’s family violence conduct. It culminated in one complaint by his wife to police and a 72-hour police order, after which time no further family violence conduct occurred (para 8.2(3)(b) of Direction No 99).
The Applicant has not undertaken any rehabilitation for family violence conduct. As the Applicant acted on my self-incrimination warning, as was his right, I do not have sufficient evidence to make a finding on whether he accepted responsibility for that conduct, or whether he has any understanding of the impact of his behaviour, or whether he understands the behaviour to be wrong (para 8.2(3)(c) of Direction No 99).
The Applicant has not received any formal warnings about the consequences of further acts of family violence (para 8.2(3)(c) of Direction No 99). However, after being spoken to by police and being issued the 72-hour police order the family violence conduct ceased.
Given the very serious nature of the conduct which occurred over an approximate two-year period, and which could have killed or seriously injured his wife, and the absence of any rehabilitation, I find that this consideration weighs heavily in favour of exercising the discretion to cancel the Applicant’s Visa.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
(i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has an Australian citizen wife who will be affected by my decision. The Applicant and his wife had an arranged marriage. The Applicant’s case in this Tribunal, and the evidence led by the Applicant, was on the basis that if he was returned to Pakistan, his wife would remain in Australia.
Despite the Applicant’s offending (which he has not been honest with his wife about), and the stress their relationship was placed under due to difficulties conceiving a child, both gave evidence that they are still in a relationship.
The Applicant claimed that his relationship with his wife “is based on love and mutual commitment” and he claims to support her “financially and emotionally whenever she needs my help” (A1/3, para [25]). The Applicant’s wife did not appear to be as certain about their relationship when giving evidence at the hearing. She stated that (transcript/63):
… he promised me that he is going to be changed person. He will not repeat anything that he did in his past or to outside or to me. Like, he going to be a different person. That’s why I am thinking to give my relationship a chance.
I also have doubts about the Applicant’s characterisation of the relationship due to the domestic violence conduct that he committed against his wife in the past. There is also evidence, that the Applicant has used sex workers in the past, which he denies. A finding that he did is supported by the text messages he sent to numerous mobile telephone numbers on the morning of his “incites a child over 13 and under 16 to engage in sexual behaviour” offence (see G5/43-44 and 58).
The Applicant further stated that he provides “full time support” to his wife and that “she is solely and substantially dependent on me for all her basic needs including food, clothing and shelter” (A1/5, para [4]). However, I am of the view that the Applicant has attempted to exaggerate his wife’s reliance on him. I note that the Applicant’s wife has previously worked in a fast-food restaurant and then re-trained and ran a home day-care business. She stopped working in that business in 2020 due to the difficulties she was having conceiving a child. She is currently looking for a job and has re-trained before. She is also aware of Centrelink benefits and has been relying on some of her savings from when she was working. In addition, the IVF treatment has now been paused due to the Applicant being in immigration detention and it is unlikely to continue if the Applicant is removed from Australia. This means that she will not need his emotional support whilst undergoing IVF procedures because she will not continue with them. I also note that the Applicant’s wife has a brother and sister in Australia and two nieces or nephews (transcript/66). Her brother sponsored HG and her sister to come to Australia, and she has lived with her brother in the past.
I find that HG may suffer some emotional, financial and practical detriment if the Applicant was removed from Australia, although not to the extent that the Applicant has represented.
The Applicant has been a resident in Australia for nearly 10 years, having arrived as a 30-year-old adult. The Applicant was not resident in Australia during his formative years, which would attract considerable weight (para 8.3(4)(a)(i) of Direction No 99).
The Applicant has made some positive contributions to the Australian community through employment as a bricklayer. As I discuss below under the consideration of Australian business interests, there is no evidence to support the Applicant’s claims that he employed three to four people. Nevertheless, the evidence supports a finding that he is a reliable and hard worker. He has contributed to the Association including helping with car park security when there are community events (transcript/96). The Applicant claimed to have served on the cabinet and the Board of the Association and that he has resigned from the cabinet due to his offending, but not the Board because he was a guarantor and had used his house as security (transcript/57). That evidence proved to be untrue. The current President of the Association, AMoh, gave evidence at the hearing that the Applicant had previously served on the Board, but that he had resigned and currently held no official position within the Association. Further, he was never a guarantor because the bank would not accept his house as security. Despite the Applicant not being honest with his evidence, he has nevertheless made some contributions to the Association, and I give some weight to these positive contributions.
The Applicant’s involvement with the Association and the community is indicative of ties to the Australian community. Twelve members of the Association signed a petition in support of the Applicant (A1). A former member of the Association, HM, wrote a letter dated 25 February 2024 in support of the Applicant being able to stay in Australia. Another friend, RH, provided a “character certificate” in favour of the Applicant being of good character, which was undated but lodged on 15 March 2024. The Applicant’s friend Mr ST, whom he knows from the Association and the community, also provided a statement dated 7 March 2024 and an earlier undated statement (G14/107) and gave evidence in support of the Applicant at the hearing. Another friend AMob provided a statement dated 7 March 2024 and gave evidence in support of the Applicant at the hearing. AMoh, who I mentioned above as being the President of the Association, also gave evidence at the hearing in support of the Applicant and submitted an undated statement lodged on 15 March 2024. The former President of the Association, MAM, also provided a letter of support dated 29 January 2024 (G14). These persons are indicative of the Applicant’s ties to the Australian community and to his local community.
The Applicant arrived in Australia on 20 May 2014 and his “incites a child over 13 and under 16 to engage in sexual behaviour” offence was committed on 5 January 2022 (para 8.3(4)(a)(iii) of Direction No 99). Therefore, he did not commence offending shortly after arriving in Australia.
The Applicant has some ties to the Australian community by virtue of his Australian citizen wife and friends and members of the Association and community. His wife may suffer some emotional, financial and practical detriment if he is removed, although not to the extent represented by the Applicant. The Applicant has lived in Australia for nearly 10 years. Although he did not spend his formative years in Australia, he did not commit his first offence for approximately eight years after his arrival, and he has made some positive contributions to the community. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs moderately against exercising the discretion to cancel the Applicant’s Visa.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration. The Applicant has not identified any minor children that would be affected by my decision. Therefore, this consideration is not relevant.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh in favour of cancellation of a visa if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by the Applicant’s conviction for “incites a child over 13 and under 16 to engage in sexual behaviour”, the Applicant has breached this expectation by not obeying Australian laws. He has also breached this expectation by engaging in serious family violence conduct, committed against his wife, HG. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view 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. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). As I have found above, the Applicant has engaged in serious family violence conduct against his wife, HG.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant and his individual circumstances.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly in favour of exercising the discretion to cancel the Applicant’s Visa.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under ss 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to Pakistan as soon as is reasonably practicable and he will remain in immigration detention until he is removed.
Further, if the Applicant is removed to Pakistan, it is likely that he will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia.
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction provides guidance in the situation where the non-citizen is covered by a protection finding, as defined by s 197C of the Migration Act (para 9.1.1 of Direction No 99), and where the non-citizen is not covered by a protection finding (para 9.1.2 of Direction No 99). No protection finding has been made regarding the Applicant, and so the latter sub-paragraph is applicable.
Paragraph 9.1.2(1) of Direction No 99 provides that if a non-citizen raises non-refoulement claims, the decision-maker must consider them:
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
If the non-citizen can apply for a protection visa the decision-maker will not be required to consider the non-refoulement issues in the same level of detail as for a protection visa. Paragraph 9.1.2(2) of Direction No 99 explains that the decision-maker must consider the non-citizen’s representations, but can proceed on the basis that those claims will be assessed if the person applies for a protection visa:
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
Further information for decision-makers is provided by paragraph 9.1.2(3) of Direction No 99. It firstly identifies that non-refoulement obligations identified outside of the protection visa process, such as in an International Treaties Obligations Assessment, do not prevent the non-citizen from being removed. It also states that decision-makers must carefully weigh any non-refoulement obligation against the seriousness of an applicant’s criminal offending or other serious conduct. The sub-paragraph further confirms that even if non-refoulement obligations are owed to a non-citizen, this does not preclude the cancellation or refusal of their visa, because they will not necessarily be removed to the country where the non-refoulement obligation exists. This is because the Minister can consider other options, including removal to a third country, or exercising personal discretion to grant another visa or to make a residence determination. Also, if the non-citizen can apply for a protection visa, they will not be removed from Australia while that application was being determined:
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
I will now consider the non-refoulement claims that the Applicant has made (para 9.1(1) of Direction No 99).
The Applicant has made general non-refoulement claims in this application. They were not raised before the delegate who made the Reviewable Decision (G3/31).
In his SFIC, at [5.7], the Applicant stated that:
In making a determination on the extent of impediments if Mr [Applicant] is removed to Pakistan, the Delegate has given some weight against cancellation of Mr [Applicant’s] visa. However, we submit that Mr [Applicant] and his wife would be very likely to face persecution if Mr [Applicant] is removed to Pakistan. In support of our contention, we rely on country information which supports that Hazara Shia face extreme level of persecution in Quetta City of Pakistan.
Given their vulnerability in Pakistan, Australia has already granted protection to several Hazara Shias from Pakistan. In our humble submission, Mr [Applicant] has a well-founded fear of persecution due to his race and religion in Quetta City of Pakistan. Mr. [Applicant] has lived in Quetta where he had witnessed multiple suicides attacks on their religious procession, worship places and other public places like market before he migrated to Australia. Mr [Applicant’s] accounts are corroborated by credible independent reports. For example, a report published in February 2018 by the National Commission for Human Rights titled “Understanding the Agonies of Ethnic Hazaras” states that the Hazara persecution in Pakistan “worsened after 9/11 and the ensuing war on terror in which religious extremists and terrorists in Afghanistan and Pakistan have joined hands to destabilize the region [National Commission for Human Rights, “Understanding the Agonies of Ethnic Hazaras”, February 2018, p. 4.]
The most horrific attacks giants Hazaras occurred in January and February 2013. On 10 January 2013, a suicide attack against a snooker hall in Alamdar Road Quetta – where Mr [Applicant] lives – and killed 96 Hazaras where about 150 others were seriously injured. A month later, on 17 February 2013 approximately 1000 KG explosives were planted inside a water and was detonated in Hazara Town killing over 90 Hazaras and injuring around 200 others. We respectfully disagree with the Delegate’s assertion that Mr [Applicant] and his wife, should she accompany him, would likely have access to the standard of services typically available to Pakistani citizens.
The Delegate has failed to appreciate the peculiar circumstances of Mr [Applicant] and the threat he is exposed to in Pakistan.
I note that although the passage above refers to the Applicant’s wife, there is no evidence that she would return to Pakistan with him, and the Applicant’s case before the Tribunal was that she would stay in Australia where she would suffer emotional and financial detriment without the Applicant.
In paragraphs [56] – [59] of the Applicant’s Reply Submissions, he stated:
… The applicant is a Hazara Shiam. There is plethora of country information about the Hazara Shia in Quetta, Pakistan where they are at substantial risk of harm, persecution on the basis of their faith and ethnicity.
We submit that the applicant has well-founded fear of persecution in Quetta if he is deported to Pakistan.
…
We respectfully submit that Hazara Shias are discriminated in Quetta on the basis of their religious faith and ethnicity. They are considered impure. The other ethnicities like Baloch, Pashtoon and Punjabi do not inter-dine with Hazara because they consider them impure on the basis of their religious faith.
I note that the Applicant did not make any protection claims in any of his written statements in these proceedings.
From the totality of the evidence that I have outlined above, I understand the Applicant’s claims to be that he is likely to face persecution if removed to Pakistan on the basis of race and religion, namely his Hazara ethnicity and Shia religion, and that he would be at risk of violence and discrimination.
The Respondent has submitted that I should be sceptical of the Applicant’s claims because they have only been raised in these proceedings and were not raised before the delegate. Further, the Respondent submitted that the Applicant lived in Pakistan for 29 years prior to coming to Australia, his mother and ten siblings live in Pakistan (see transcript/18) and he has not claimed that they face any harm in Pakistan. The Respondent also submitted that the Applicant had made a “bland reliance” on country information which referred to persecution worsening after 11 September 2001 attacks (some 23 years ago) and identified attacks against Hazaras (some 11 years ago). Based on the limited information before me, I am persuaded that the Respondent’s submissions are to be preferred at this time. The Applicant’s claims are general in nature and are not clearly articulated or supported by sufficient evidence. Indeed, those claims have been made by the Applicant’s legal representative and do not appear in any statement signed by the Applicant.
As is contemplated by the Direction, and by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [9], the Applicant can apply for a protection visa and so it is not necessary for me to determine whether non-refoulement obligations are engaged. In my view this is the more appropriate course if the Applicant is unsuccessful in this application. This is because his non-refoulement claims in these proceedings are general and not well articulated or sufficiently supported by evidence. If the Applicant makes a protection visa application, he will have the opportunity to make more detailed and specific non-refoulement claims, that will be conclusively assessed prior to consideration being given to any character concerns (para 9.1.2(2) of Direction No 99). In other words, deferring consideration of the Applicant’s protection claims to a specific protection visa process would allow him to fully articulate all relevant claims and for those claims to be considered in detail by a specialised decision-maker. He will also not be removed from Australia while a valid protection visa application was being determined (para 9.1.2(3) of Direction No 99). I note that at the hearing, the Applicant’s representative Mr Ali conceded that it would be appropriate for me to defer consideration of the Applicant’s protection claim to the protection Visa process.
I therefore give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 40 years of age. The sentencing Judge described the Applicant as “a person who enjoys good mental and physical health” (G5/57).
The Applicant has lived in Australia for nearly ten years, arriving as a 30-year-old adult. Therefore, there are unlikely to be any language or cultural barriers if he were to return to Pakistan. As I have discussed above, submissions from the Applicant’s lawyers were that the Applicant may face violence and discrimination in Pakistan due to his Hazara ethnicity and Shia religion. However, as I stated above, those claims are not clearly articulated and supported by evidence such that I am not persuaded they would amount to impediments.
The Applicant’s mother and ten siblings live in Pakistan, so he is likely to have some social and emotional support if returned there. He has extended family in Pakistan, including nieces and nephews (transcript/18).
The Applicant may suffer emotional detriment if he is not granted the Visa and must return to Pakistan because he will be separated from his wife in Australia. There may be some cultural embarrassment if he returns to Pakistan due to his offending because his marriage to his wife whom he will likely leave in Australia was arranged. He also gave evidence in these proceedings that he sends money back to his family in Pakistan from Australia to help support them.
The Applicant completed high school in Pakistan and worked in his father’s shop in Pakistan after his father passed away. He also has experience working as a bricklayer in Australia, which may assist him to find employment if he is returned to Pakistan.
The Applicant is likely to have the same rights as other citizens of Pakistan, with respect to whether he could access medical and/or economic supports if returned there.
I find that there are likely to be minimal impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to Pakistan.
Consequently, I find that this consideration weighs slightly against exercising the discretion to cancel the Applicant’s Visa
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant’s wife, HG, is the victim of his family violence offending. The impact of a decision on her has already been discussed under the strength, nature and duration of the Applicant’s ties to the Australian community. They married after an arranged marriage, and they are still in a relationship, although the strength of that relationship is unclear. In the past HG has relied on the Applicant for emotional, practical, and financial support due to the miscarriages she has suffered, the birth of a stillborn baby, and during her numerous unsuccessful rounds of IVF. The Applicant arranged her IVF and took her to appointments. As I noted above, those treatments are likely to stop if the Applicant cannot stay in Australia and so HG will no longer need that practical support. As I mentioned above, the Applicant tried to downplay his wife’s ability to support herself. However, I note that she is currently looking for a job, has re-trained before, is aware of Centrelink benefits and has been relying on some of her savings from when she was working. I am therefore of the view that the Applicant’s wife may suffer some emotional, practical, and possibly some financial detriment if he is removed from Australia.
The Applicant’s family violence offending ceased in 2018, but it was serious offending, and I am concerned about what the Applicant’s reaction toward HG may be if he is released into the Australian community, given her evidence to this Tribunal about the Applicant’s family violence conduct towards her.
I do not have any information about the effect of my decision on the victim of the Applicant’s “incites a child over 13 and under 16 to engage in sexual behaviour” offence or on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations).
After balancing the matters discussed above, I am of the view that this consideration weighs slightly against exercising the discretion to cancel the Applicant’s Visa.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant’s evidence at the hearing was that he had his own business as a bricklayer before he went into immigration detention. He said that he employed three or four people in his business (note, the transcript of proceedings incorrectly states “24” when the Applicant’s actual evidence was “three or four”). The Applicant’s lawyer, Mr Ali, stated the Applicant would re-employ those persons if the Applicant was granted the Visa. The Applicant gave evidence at the hearing that he built 25 to 30 houses a year. Mr Ali submitted that the Applicant would not be able to meet contractual obligations to finish building houses if he was not granted the Visa and able to stay in the Australian community.
This evidence is at odds with the documentary evidence before me. A letter from the director of a construction company dated 11 March 2024 states that the company has “employed” the Applicant as a bricklayer with their company for the past five years. Another undated letter lodged with the Tribunal on 15 March 2024 from a home building company refers to the Applicant being a “sub-contractor”. It discusses the Applicant as an individual and makes no reference to the Applicant having anyone else working for him. There is another letter on company letterhead from a person stating he is a director of the company dated 7 March 2024. That letter states that since 2016, the Applicant “has worked as a bricklayer on numerous residential buildings Constructed by the Company”. It continues to state that “I have found [the Applicant] to be competent and honest and to carry out his work to a high standard” (A1). These letters show that the Applicant works as an employee and sub-contractor for three companies. There is no evidence that the Applicant has his own business, that he employs three or four employees, or that he has any contracts that may be impacted if he is not granted the Visa.
Overall, this consideration should be given neutral weight.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether discretion should be exercised under s 501(2) of the Migration Act to cancel the Applicant’s Visa, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
·The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately to strongly in favour of exercising the discretion to cancel the Applicant’s Visa.
·The family violence primary consideration weighed strongly in favour of exercising the discretion to cancel the Applicant’s Visa.
·The strength, nature, and duration of the Applicant’s ties to Australia weighed moderately against exercising the discretion to cancel the Applicant’s Visa.
·The expectations of the Australian community weighed strongly in favour of exercising the discretion to cancel the Applicant’s Visa.
I made the following findings with respect to the other considerations that were relevant. These were:
·I gave neutral weight to the other consideration of the legal consequences of the decision.
·The extent of impediments if removed other consideration weighed slightly against exercising the discretion to cancel the Applicant’s Visa.
·The other consideration regarding the impact on victims weighed slightly against exercising the discretion to cancel the Applicant’s Visa.
·The other consideration of the impact on Australian business interests was given neutral weight.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each consideration is appropriate.
Overall, I find that the primary considerations of the protection of the Australian community which weighed moderately to strongly, family violence which weighed strongly, and the expectations of the Australian community which weighed strongly, in favour of exercising the discretion to cancel the Applicant’s Visa under s 501(2) of the Migration Act, outweigh the primary and other considerations that weigh in the Applicant’s favour. Those were the strength, nature, and duration of the Applicant’s ties to Australia which weighed moderately against the discretion being exercised, and the extent of impediments if removed other consideration, which weighed slightly against the discretion being exercised to cancel the Applicant’s Visa.
In summary, I am satisfied that discretion should be exercised to cancel the Applicant’s Visa under s 501(2) of the Migration Act. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.............[Sgd]......................................
Associate
Dated: 8 May 2024
Date of hearing: 15 and 16 April 2024 Representative for the Applicant: Mr Ramzan Ali, R.A Lawyers and Migration Pty Ltd Representative for the Respondent:
Ms Daphne Jones-Bolla, Sparke Helmore Lawyers
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