MWKB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] ARTA 190

MWKB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 190 (13 November 2024)

Applicant/s:  MWKB

Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number:                2024/6370

Tribunal:Deputy President K Millar

Place:Adelaide

Date:13 November 2024

Decision:The decision not to revoke the cancellation of the Applicant’s Subclass 851 (Resolution of Status) visa under s 501CA(4) of the Act is affirmed.

........................................................................

Deputy President K Millar

CATCHWORDS

MIGRATION – mandatory cancellation of Applicant’s visa – Applicant subject of protection finding – Applicant granted a Bridging Visa R (Subclass 070) – Applicant does not satisfy character test – whether another reason for the cancellation decision to be revoked – Direction 110 – Applicant convicted of aggravated indecent assault of stepdaughter –  the expectations of the Australian community, family violence and the protection of the community outweigh other considerations – effect of YBFZ and Minister for immigration, Citizenship and Multicultural Affairs – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)

CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

Statement of Reasons

1. The Applicant is a citizen of Iran who came to Australia in 2013 and held a Subclass 851 (Resolution of Status) visa until it was cancelled on 23 April 2024 because he had been convicted of a sexually based offence involving a child.

2. The Applicant sought revocation of the decision to cancel his visa, and on 20 August 2024, a delegate of the Minister for Immigration decided not to revoke the cancellation of his visa. The Applicant has applied for a review of this decision.

3. The issues to be decided are whether the Applicant passes the character test; and, if he does not, whether there is another reason the cancellation of his visa should be revoked.

   BACKGROUND

4. The Applicant’s parents and three sisters live in Tehran in Iran.  He arrived in Australia on 26 May 2013 and applied for a protection visa.  In his application for a protection visa, he said he was married in Iran in 2013 but his wife left him due to his Christianity. He claimed he would be persecuted if returned to Iran because he had converted to Christianity.

5. The Applicant was granted a Safe Haven Enterprise (Subclass 790) visa on 13 July 2018.  This is a temporary protection visa and in granting the visa, a delegate of the Minister found that the Applicant is a refugee and meets 36(2)(a) and 36(1C) of the Migration Act 1958 (Cth) (‘the Act’).[1] This means a protection finding has been made in accordance with s 197C(5)(a) of the Act.

   [1] Ex R5.

6. On 8 April 2024, the Applicant was convicted of aggravated indecent assault of his stepdaughter, who is referred to in this decision as ‘M’.  The Applicant pleaded guilty to this offence and was sentenced to a term of imprisonment of five months and 18 days.  His visa was cancelled on 23 April 2024.

7. The Applicant was released from prison on 22 June 2024, and he was taken into immigration detention.  He was granted a Bridging Visa R (Subclass 070) (‘BVR’) on 21 August 2024.  This visa was subject to a number of conditions, including condition 8620 which required him to abide by a specified curfew, condition 8621 which required him to wear a monitoring device at all times and take any steps specified by the Minster to ensure the device and related monitoring equipment remain in good order, and condition 8624 which requires that he does not contact or attempt to contact the victim of the offence or a member of the victim’s family.

8. At the hearing on 4 and 5 November 2024, the parties were advised that the High Court had listed the matter of YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (‘YBFZ’)[2] for decision at 10am on 6 November 2024, and were invited to make submissions on the effect of this decision by close of business Thursday 7 November.

   [2] [2024] HCA 40.

9. As it applies to the Applicant, the effect of the decision in YBFZ is that the conditions on his BVR that impose a curfew from 10pm until 6am, and that he wear and maintain a monitoring device, are invalid and do not apply from the date and time of this decision.  He remains subject to the other conditions on his BVR.

10. On 7 November 2024, the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) was passed and came into effect.  This applies to BVRs granted after 10:13am AEDT on 7 November 2024.  As the Applicant has not been granted a further BVR, the amendments do not apply to him, or his current BVR.   

11. Both parties provided submissions on the effect of YBFZ, however the Applicant also provided further evidence. Under s 501(6J) of the Act, I cannot have regard to this evidence as it was not provided two business days before the hearing. A further hearing was held on 11 November 2024 to allow me to hear from the representatives on this issue, and I decided to hear from the Applicant about the effect of these conditions being removed.[3]  He said the effect is to allow him to apply for a job with his current employer and greater freedom to access church activities and health and rehabilitation services.

    [3] The bar in s 501(6J) of the Act does not apply to evidence elicited from the Tribunal or submitted by the Minister DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 at [59].

    LEGISLATIVE FRAMEWORK

12. Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:

    ·     a court has convicted the person of a sexually based offence involving a child; and

    ·     the person is serving a sentence of imprisonment on a full-time custodial basis in a custodial institution for an offence against the law of the Commonwealth, a State or Territory.

13. On 8 April 2024, the Applicant was convicted of aggravated indecent assault against a person who was at the time 15 years old and sentenced to a term of imprisonment of 5 months and 18 days.  At the time his visa was cancelled, he was serving a full-time term of imprisonment.  He has been convicted of a sexually based offence involving a child and was serving a full-time custodial sentence at the time his visa was cancelled. 

14. A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under 501CA(4) of the Act. This provides that:

    (4) The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation; and

    (b) the Minister is satisfied:

    (i)that the person passes the character test (as defined by section 501); or

    (ii)that there is another reason why the original decision should be revoked.

15. On 24 April 2024 the Applicant made the representations required by s 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.

16. As the Applicant does not meet the character test the remaining issue is whether there is another reason the decision to cancel his visa should be revoked. 

    THE DIRECTION

17. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A) of the Act).

18. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.

19. At the time the notice of intention to cancel his visa was issued to the Applicant, the relevant direction was Direction 99.  Before a decision was made, the Applicant was advised by the Department that Direction 110 had replaced Direction 99 and was provided an opportunity to make further submissions and provide information before the primary decision was made.[4] 

    [4] Ex A3.

20. Clause 5.2 of the Direction provides principles to provide a framework to approach decision making.  These 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)The safety of the Australian Community is the highest priority of the Australian Government.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[5]

    [5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).

21. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa.  It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

    (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3)One or more primary considerations may outweigh other primary considerations.[6]

    [6] Ibid cl 7.

THE APPLICANT’S REQUEST FOR REVOCATION OF THE CANCELLATION OF HIS VISA

1. The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.

2. In summary, in his request for revocation the Applicant states he came to Australia in 2013 after he converted to Christianity in Iran in 2004 and had to flee to escape persecution of Christians.  He has been a member of the church in Iran and in Australia and for 11 years he has cooperated with different pastors teaching and translating for the Iranian congregation.  He met his wife who is also Christian and married in 2017.  He has worked hard to provide for his family both here and in Iran. 

3. He states he made a terrible mistake in his life and fell into the pit of sin and is regretful and ashamed.  He has pleaded with God for forgiveness and has the assistance of being forgiven by Him.  He has received justice by imprisonment.  Because he is a Christian, in Iran he is an apostate and his life is worthless, and there is a serious danger to his life and his family.  He lost everything to leave Iran and come to Australia and if deported he has nowhere to live, no job and will finish in an Islamic jail. 

THE PRIMARY CONSIDERATIONS

1. The Direction contains five primary considerations, which are:

   (1)  The 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)  The expectations of the Australian community.[7]

   [7] The Direction, cl 8.

2. I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.

The protection of the Australian community

1. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.[8]

   [8] Ibid cl 8.1(1).

2. The Tribunal is directed to 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.[9]

   [9] Ibid.

3. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[10]

   [10] Ibid cl 8.1(2).

   Nature and seriousness of the conduct

4. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[11]  Crimes of a violent or sexual nature against women and children, such as that committed by the Applicant, are regarded as very serious, regardless of the sentence imposed.[12]

   [11] Ibid cl 8.1.1(1)(a).

   [12] Ibid cl 8.1.1(1)(a). 

5. Other factors to be considered in assessing the nature and seriousness of the conduct are, in summary:

   ·     the impact on any victims of the offending,

   ·     the frequency of offending and/or whether there is any trend of increasing seriousness,

   ·      the cumulative effect of repeat offending,

   ·     whether the non-citizen has provided false or misleading information to the Department,

   ·     whether the non-citizen has re-offended since being formally warned or otherwise being made aware in writing of the consequences of further offending; and

   ·     where the offence was committed in another country, whether the offence or conduct is classified as an offence in Australia. 

6. The Applicant pleaded guilty to aggravated indecent assault, and the offending is described in the sentencing remarks of Magistrate Wickens.[13]  The victim of the offending is the Applicant’s stepdaughter (M) who was 15 years old at the time.  On 2 January 2024 the Applicant was at home alone with his stepdaughter and over a period of around half an hour made advances to her of a sexual nature, stroking her legs and buttocks, lifting her onto his lap and kissing her face and lips.  This ended when his wife returned to the home. 

   [13] Ex G7, 43–45.

7. Immediately after it occurred M told his wife (M’s mother), and the Applicant made admissions to his wife.  He attended his church and confessed to the pastor. On being arrested on the same day he made full admissions about the offending.

8. The Applicant was sentenced to a term of imprisonment of 5 months and 18 days, and a final Intervention Order (IO) was imposed.  The IO is to protect M and includes terms, among others, that the Applicant vacate the property, not approach within 50 meters of M or he boundary of any place where she stays, resides or works, and not approach within 50 metres of any education or case facility attended by M. 

9. As a crime of a sexual nature against a child, this offence is viewed very seriously by the Australian government and the Australian community regardless of the sentence imposed.

   Impact on the victim

10. There is no direct information about the impact of the Applicant’s offending on M.  M’s mother (and the Applicant’s wife) states M did not want to speak to a counsellor or psychologist but did speak to her pastor and some close friends.  Her mother says she is reported to be doing well at school, has maintained a strong relationship with friends, and has made new friends at church.  While she was withdrawn in the first few months after the incident her mother says she has since improved and has forgiven the Applicant and does not want anything bad to happen to him. M has shown no interest in cancelling the Intervention Order.  Her mother states she has not noticed any significant negative impact on M’s life as her school performance has not changed and she maintains a good relationship with her peers.  Her mother says she is not sure there is enough evidence to argue psychological harm, and that M is coping better than one might expect.  She knows this because she has watched her closely and prayed. She said child protection services contacted her after the Applicant was arrested but were satisfied it was a safe environment.

11. The victim’s mother said she knows the Applicant has repented as he is much more aware of his thoughts, has a deep fear of God, and is more aware of compliance with the law.  She believes anyone who has genuinely repented will not repeat the same mistake as we all make mistakes.  She said it was a mistake that the Applicant indecently assaulted her daughter, he immediately felt sorrowful, and she saw his genuine sorrow and regret.  He kept himself away from her daughter in the time between the assault and when he was arrested.  She said she truly knows he will not touch her daughter anymore because of the pain from his conscience, and because God is justice and righteousness and the Applicant has sinned against other people and God.  She said a normal man would not repeat the same mistake because of the trauma and shame the Applicant has experienced. 

12. M’s mother wrote a letter to M because she was withdrawn and would not have a deep conversation with her.  Her mother said in this letter she told M:

    Everyone has their weakness especially men, a man has greater weakness and … although we are all god fearing men but we do have our weakness and just occasionally get overwhelmed and I wrote to her just be aware of how you present yourself especially in front of males and ah, just make sure you wear more modest [clothes] and make sure in the society you do not go to the bad places. 

1. She encouraged M to forgive, not to take the incident too deeply in her heart, and to let it go and move forward.  M did not respond to the letter.  

2. There is no direct evidence from M. Her mother believes there is little effect on her, and this is supported to some extent by M maintaining her grades and social connections. However, M will not directly discuss the indecent assault with her mother, and their interactions occur in the context of her mother wanting to continue her marriage with the Applicant. As a result, I place lesser weight on the mother’s opinion about the effect on M as I do not consider her evidence to be from an independent and authoritative source as specified by cl.7(1) of the Direction. I attribute some weight to the lack of a negative effect on M’s grades and social connections. I do not consider it otherwise assists me to determine the effect on M of the offending.

3. M’s mother states that the whole situation has been deeply painful and has affected their family in ways she could never have imagined.[14] 

   Increasing seriousness, cumulative effect, false and misleading information and warnings

   [14] Ex A2.

4. The Applicant has one conviction, and there is no trend of increasing seriousness or cumulative effect of repeat offending.  The Applicant has not provided any false or misleading information to the Department, or previously been warned about the consequences of his offending. 

5. Overall, the offending is very serious but is limited to one event. It has not affected M’s grades or her social connections.

   Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

6. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences.  Clause 8.1.2 of the Direction states, in part:[15]

   (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

   (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

   a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   i. information and evidence on the risk of the 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). …

   [15] See also the Direction, cl 8.1(2)(b).

7. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[16] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[17]  There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[18]

   Nature of the harm

   [16] The Direction, cl 8.1.2(2)(a).

   [17] Ibid cl 8.1.2(2)(b).

   [18] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

8. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[19]

   [19] The Direction, cl 8.1.2(2)(a).

9. I have considered the nature of the harm if the Applicant were to reoffend in the same way and indecently assault a child.  The harm involved to the victim and the cost to the broader community of sexual offences against children is widely recognised and is severe. 

10. While the Applicant and his wife state that M does not appear unduly distressed, M will not directly discuss the assault with her mother.  Should the Applicant commit further offences of the same nature, I consider the nature of the harm to potential victims is severe. 

    Likelihood of the non-citizen engaging in further criminal or serious conduct

11. Magistrate Wickens states he is told that the Applicant’s remorse is sincere, and the offending is unlikely to occur again.  This is not expressed as Magistrate Wickens’ assessment, but rather as a report of what he was told. 

12. The Applicant made full admissions both to his wife, his pastor, and police.  He spoke to his wife after she arrived home and told her he had kissed M and hugged her.  His wife says he was very distressed and beating himself on his chest.  He tried to distance himself from M after the assault, remaining in his car the next night until his wife arrived home from work and discussing with his wife moving out of the house. 

13. The Applicant went to speak to a pastor at the church a day and a half after the assault, and the pastor reported it to police.  The Applicant was arrested and made a full admission to police.  This included that:

    … in Iran he looked at a lot of pornography and read a lot of adult literature as a child.  Once he oved to follow Christianity the accessed stated that he stopped watching pornography but once moving to Australia he started feeling lonely and started watching and viewing porn, naked images of women as well as viewing anime and cartoons.  The accused stated that he finds his 15 year old step daughter a lot more attractive than his wife and that he was very aroused when he kissed her.[20]

    [20] Ex. S23, 53.

14. He did not seek bail because he said he felt like he should be punished. 

15. In his more recent statement, the Applicant says in his statement to police he exaggerated his attraction towards M because he was in a distressed state and felt compelled to say anything that would lessen his burden.[21] He did not seek legal advice before he was interviewed, however at hearing he said this would not have made a difference to his admissions at the time.  I do not accept that the explanation he provided to police within days of the assault was due to his distressed state, and instead consider it a more likely explanation of his conduct.  He also said he would have agreed to anything police suggested, and I do not accept police would suggest this narrative. 

    [21] Ex A1.

16. The Applicant’s most recent statement includes that he did not notice anything unusual about M’s behaviour after the incident and “She seemed perfectly normal, showing no signs of distress.”  He considers a supplement he was taking to improve his libido and sex drive contributed to his behaviour towards M ‘although I do not blame the supplement only my own behaviour.’  He comments that during the assault M did not say anything or resist, before commenting that M seemed perfectly normal after the assault showing no signs of distress.[22]

    [22] Ibid.

17. The Applicant’s attempt to retreat from the statement he made to police within days of the assault does not show that the Applicant has recognised the problem with his behaviour.  I do not accept that his level of distress would lead him to overstate what he felt at a time closer to events, and consider his later explanations an attempt to place a better light on his behaviour.  I do not accept that taking supplements to improve his libido provides any excuse or reason for the indecent assault of M. 

18. In her evidence to the Tribunal, M’s mother states she wants to maintain her marriage with the Applicant as he has repented and taken responsibility.  She said she spoke to her daughter about her welfare three or four times in the month or two after the assault, but used an indirect approach such as asking how she was feeling because M would not respond to direct questions about the assault.  On being asked if her relationship with the Applicant prevented M discussing the effect of the offending on her, she said she did not expect her daughter to tell her everything, it was up to M to tell her.   She has encouraged M to forgive the Applicant. 

19. The Applicant is subject to an IO, and I accept this decreases the risk to M, but also find that while her mother does not oppose her choice to leave the Intervention Order in place, she would prefer it is revoked as she wants to resume her marital relationship with the Applicant.

20. Statements in support of the Applicant at sentencing include one from the Leader of the Adelaide Iranian Church[23] who finds it hard to believe that the Applicant would do what he is accused of and ‘wonder how much is exaggerated’, and that he asks that the statement by M ‘be checked thoroughly to make sure that it is factual.’

    [23] Ex G29, 128.

21. The Associate Pastor of the Baptist Church the Applicant attends states he was aware of the difficulties the Applicant had with the victim and noted his concerns about the marriage and the cultural differences between the Applicant and his wife and her daughter.[24]  He  states that the Applicant would have difficulties with M and would seek refuge elsewhere until the issues between him and his wife were resolved.[25]  The statement provided to the Department is nearly identical to the statement provided at sentencing,[26] however removes passages about the victim’s behaviour, describing it as manipulative towards the applicant and that the Applicant would have said yes to almost any questions police asked and possible accusations made by his stepdaughter.

    [24] Ex S7, 12.

    [25] Ibid.

    [26] Ex G30, 130.

22. A statement from a friend[27] includes that the Applicant believed that M was trying to make him angry so they could call the police for child abuse, that M purposely removed her clothes and left the door open to try and tempt him, and that she had tried to kiss him on the lips for which he told her off.  This statement was provided after the assault and is a record of what the Applicant has told his friend.  The friend believes ‘the whole issue’, being the indecent assault, is a plot against the Applicant to kick him out and get a divorce. 

    [27] Ex G33, 135.

23. These statements in support of the Applicant are concerning considering his admissions at the time about the assault, and that they question what occurred when the Applicant had admitted to his conduct.   

24. The Applicant is a large man, and he holds strong beliefs about the upbringing of children reinforced by his literal interpretation of the Bible.  He is unshakable in his own interpretation of the Bible, and considers he has been forgiven by God because he has repented but is himself the judge of whether this is genuine.   He is supported by his church friends and his wife in many of his beliefs.  His statement that he now that he recognises that he crossed a line and that the law considers this to be child abuse, and that he exposed his stepdaughter to an unsafe environment, is not entirely consistent with the statements in his support that he provided, or his evidence about his behaviour. 

25. The personal consequences of his offending have been considerable with arrest, imprisonment and then being taken into immigration detention, and the cancellation of his visa and grant of a BVR as well as the church community being aware of his offending.  His wife speaks of torture from his conscience, the shame he has felt, his ruined reputation and the penalty.  At sentencing, the Applicant refers to shame and disgrace for what has happened.  These matters act as a deterrent.  However, I do not consider his current explanations for his offending support that the likelihood of reoffending is low and instead consider it to be moderate. 

    Rehabilitation

26. The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence.  The Applicant was released from immigration detention on 21 August 2024, and has been in the community for approximately 11 weeks. 

27. The Applicant’s case management coordinator from prison states he maintained a positive record in prison participating in educational programs, has integrated with others, formed positive relationships and engaged in religious activities.  The Applicant said that he had undertaken training and rehabilitation in prison and did arithmetic and English grammar.  He said he organised Bible study and prayer groups.  In prison he practised his own faith, reading the Bible and discussing it with fellow-minded people.  He said in prison he learned how to be closer to God and how to stand against temptation. 

28. He said because he was in a confined place it was a good place to practise and talk as there were not so many temptations.  He said even the most devoted and faithful could fall, and in this time he was seeking reasons for what had happened.  While he was in prison he was looking for the trigger for his behaviour, and he spoke to other people in prison about the trigger and they said they did not know.  As the Applicant later acknowledged, at this time he was in the sex offender unit in prison, and I do not consider any discussions with other inmates that occurred without the supervision of professional rehabilitation counsellors is evidence of rehabilitation.   

29. It was stated at his sentencing in April 2024 that the Applicant has considered and will follow up a referral to Owenia House.  Owenia House provides programs for sexual offenders.  The Applicant’s representative made enquiries regarding the program at Owenia House on 29 October 2024,[28]  and it appears it was only shortly before this time that the Applicant approached Owenia House seeking access to rehabilitation.   

    [28] Ex A7.

30. The Applicant was assessed as suitable for the OARS (Offenders Aid and Rehabilitation Services) Circle of Support and Accountability program,[29] and was advised that there was a process of matching three trained community volunteers to establish his Circle of Support and Accountability. This program is described as a group of volunteers engaging with the core member (the Applicant) to provide a supportive network that requires the person to take responsibility for their self-management and support re-integration into the community.

    [29] Ex A6.

31. The Applicant states he is on the waiting list for both Owenia House and the OARS Circle of Support programs due to high demand.  At the hearing, it was apparent that the OARS program had commenced, and that a volunteer from OARS visits the Applicant weekly.  The Applicant states they talk about cultural issues and accountability, and the Applicant talks about the Bible and finds a way to connect this to the Bible.  These visits commenced the same month he was released from immigration detention. 

32. While there is no direct information about his compliance with the Australian National Child Offender Register, it is not disputed that he has complied with any conditions imposed. 

33. The Applicant has now retreated from his explanation to police about his history of watching and reading pornography and his attraction to M, and maintains the assault went for a few minutes at most rather than the 25 minutes stated by M and the approximately half an hour found by Magistrate Wickens.  The Applicant says his offending occurred because he ‘opened doors in his life’ to evil or Satan because of anger, pride and unforgiveness as well as disagreements with M.  These open doors allowed other sins to come in. He does not know what triggered this behaviour.    He also states the use of a vitamin to boost his libido made him more sensitive to touch. 

34. The Applicant’s current explanation for his offending provides less personal responsibility for this offending.  He could not identify any trigger for his behaviour other than taking a substance to boost his libido.   

35. While, to the Applicant’s credit, he is seeking rehabilitation and is on the waiting list at Owenia House, he has retreated from the explanation he gave to police.  His current inability to identify triggers for his behaviour other than because sins such as anger and pride allowed doors in his life to open and other sin to come in, and that he was taking a substance to boost his libido, decreases his personal responsibility for his behaviour or of finding alternate ways he could have behaved at the time.  This is a regression from his explanation to police.

36. His current explanation for his offending shows that the Applicant’s rehabilitation has regressed, and while he is willing to engage in further rehabilitation his rehabilitative steps are in their infancy. 

37. I find that there is a moderate likelihood the Applicant will reoffend, and that risk to the community is in the moderate range.

    Conclusion on the protection of the Australian community

38. Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs moderately against revoking the cancellation of the visa.

    Family violence committed by the non-citizen

39. Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.

40. The Direction states that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.[30]

    [30] The Direction, cl 8.2(1).

41. The term ‘family violence’ is defined in the Direction as violent or threatening behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful.  I consider M to be a member of his family because she is his stepdaughter and was living with him and her mother at he time of the assault. 

42. The police interview with the victim records that when he tried to kiss her she could not breathe and she pulled back when he tried to pull her towards him as she felt uncomfortable, and she kept wriggling and moving her body away from him.  She reported feeling extremely uncomfortable and awkward and not knowing what to do in the situation. That he persisted shows this behaviour was an attempt to control his stepdaughter when she was trying to move away from him and, as conceded by the Applicant, constitutes family violence. 

43. There is no information that other incidents of family violence have occurred or that there is a cumulative effect of repeat offending.  There is no pattern of frequency or trend of increasing seriousness, and he has not reoffended since being warned or made aware about the consequences of further acts of family violence.

44. The Applicant’s current explanation for his offending discounts his personal responsibility for his behaviour and he is currently unable to identify triggers for his behaviour other than sins such as anger, pride and unforgiveness.  He considers there has been little impact on M and has a superficial understanding of the potential effect of his offending. 

45. I consider this factor weighs moderately in favour of not revoking the cancellation of the Applicant’s visa. 

    The strength, nature and duration of ties to Australia

46. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia.  Clause 8.3 of the Direction provides that:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

    b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

    Immediate family

1. The Applicant’s immediate family in Australia are his wife and M.  There is an IO preventing him from approaching or contacting M. 

2. There is mixed evidence of the nature of his ties to Australia through his wife.  They have been married since July 2017.  The Applicant described a deteriorating relationship which has improved since he was imprisoned, and that they intend to resume a married life together.  His wife also said she intends to resume a married life with the Applicant.  Neither could provide any specific details about how this would occur given there is an IOer preventing the Applicant from having contact with his stepdaughter M who lives with her mother, other than saying it would have to be away from her.  They seemed unaware of the effect of the conditions of his BVR.  If his visa is reinstated, they would have to resume their relationship somewhere apart from M unless she agrees to revoke the IO.  M is now 16 and is a student, and I infer she currently requires financial and other support from her mother. 

3. The Applicant’s wife works and can support herself and her daughter financially.  The Applicant was also working while he was living with his wife and M, and contributed financially to the household. 

4. If the Applicant’s visa remains cancelled and he is in the community on a BVR he will not be able to contact his wife given the conditions on his visa.  This will cause her significant hardship.  Both the Applicant and his wife are deeply religious people and I accept this separation will cause her financial, emotional, and spiritual hardship.    

   Other ties to the Australian community

5. In considering his other ties to Australia, the Applicant has been in Australia for over 11 years, arriving when he was 46 years old.  His only offence was committed 11 years after he arrived.  He has consistently worked while in Australia and has undertaken a number of courses in transport and logistics, security, working in the construction industry and in individual support.  He was employed by the same employer from June 2018 until he was arrested, most recently as a dishwashing operator and his employer reports that he is a reliable worker who pays attention to detail. 

6. The Applicant is a committed Christian and has been part of the Baptist Church since his arrival.  He assisted with interpreting and translating religious material for the Iranian community and assisted in establishing the Iranian Church in Adelaide. 

7. The Applicant has ties to other church members and provided statements in support of revocation of the cancellation of his visa from a leader of the Adelaide Iranian Church, an associate pastor at the Baptist Church, a friend from the church and another friend from the community.

8. The Applicant has close ties with his church community and members of this community continued to so support him through his arrest and imprisonment.  If his visa remains cancelled and he is on a BVR, the Applicant will retain his ties to his friends and associates in the church and in the community as he will not be removed from Australia. 

   Other ties to the community

9. The Applicant has worked while he has been in Australia and has ties to the community through his employment.

10. The Applicant has ties to his wife and ties to the community.  The strength, nature and duration of his ties to Australia weigh somewhat in favour of revoking the decision to cancel his visa. 

    Best interests of minor children in Australia affected by the decision

11. Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.

12. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:[31]

    ·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

    ·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;

    ·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    ·whether there are other persons who already fulfil a parental role in relation to the child;

    ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

    ·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

    [31] The Direction, cl 8.4(4)(a)–(h).

13. The only child the Applicant states is affected by this decision is the victim of his offence.  In considering the best interests of M, I have had regard to the remarks of Magistrate Wickens who said ‘[a]s a stepfather you occupy a position of trust.  To offend in this way against a child who is effectively your own child is completely inappropriate.’[32]

    [32] Ex G7, 44.

14. The Applicant is subject to an IO that prohibits him contacting or approaching M. He has held a parental role for the victim in the past, however he breached his parental obligations in indecently assaulting M.

15. The Applicant had a difficult relationship with M, which he says is due to differing cultural expectations.  The Applicant explained that in Iran, children obey their parents without question and he expected this would be the case in Australia.  His views on parenting are also informed by his literal interpretation of the Bible, which he explained as being that ‘if you spare the rod the child will be spoilt,’ but then said he did not apply this tenet, but also that the Bible taught that children should obey their parents.  

16. I find the Applicant had a parental relationship with M from the time he married her mother in July 2017 until he was arrested.  He is unable to play a parental role in the future due to the IO and the conditions of his BVR. As M has reportedly not shown any signs of wanting to be in contact with him, I consider separation from him will not have a detrimental effect on her.  Her mother plays a parental role for her.  M was the subject of the indecent assault committed by the Applicant.

17. Having considered the best interests of minor children as set out in cl 8.4. of the Direction, I consider that this weighs neither for nor against revoking the cancellation of the Applicant’s visa.   

    Expectations of the Australian Community

18. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community.  Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

19. Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.   This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[33] 

    [33] The Direction, cl 8.5(2).

20. Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

21. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

22. I do not accept the submission of the Applicant, that the Tribunal can itself consider what the Australian community expects.  It is expressly stated in cl 8.5(4) of the Direction that a decision-maker should proceed on the basis of the Government’s view is articled in cl 8.5 of the Direction and without independently assessing the community’s expectations in a particular case.  This contention was also specifically rejected by the Full Court of the Federal Court in FYBR v Minister for Home Affairs[34] which states, in relation to a precursor Direction, that it is not the decision-maker who makes an assessment of community values, and those values are expressed as norms in the Direction.[35] 

    [34] [2019] FCAFC 185.

    [35] Per Stewart J at [104].

23. As the Applicant has been convicted of an offence regarded as very serious by the community, the community expects the government would not allow him to remain in Australia in accordance with cl 8.5(1) of the Direction. Despite this expectation, the Applicant will remain in Australia because he is the subject of a protection finding.  As he cannot be removed, he will be in the community and be subject to the conditions imposed on his BVR. 

24. The non-revocation of this cancellation may be appropriate when considering cl 8.5(2) of the Direction because the Applicant was convicted of indecent assault of a child, an offence the community regards as very serious, and this applies whether or not the Applicant poses a measurable risk of causing physical harm to the Australian community.  In this case, the community expects that the cancellation of the Applicant’s visa is not revoked. 

25. In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction.   In applying these principles, and mindful that the Applicant will not be removed and will remain in the community on a BVR, I find this consideration weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.

Other considerations

1. Clause 9 of the Direction states:

   (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   a)        legal consequences of the decision;

   b)        extent of impediments if removed;

   c)        impact on Australian business interests.

   Legal consequences of decision under s 501 or 501CA

2. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[36] In general, if a non-citizen’s visa is cancelled, the non-citizen is liable to be detained under s 189 of the Act. In general, a person whose visa has been cancelled under s 510(3A) of the Act must be removed as soon as reasonably practicable. Under s 197C of the Act, for the purposes of s 198 it is irrelevant whether Australia has non-refoulment obligations regarding the Applicant.

   [36] Ibid cl 9.1.

3. However, under s 197C(3) of the Act the duty to remove does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application that the protection finding was made, and this decision has not been quashed or set aside, a decision under s 197D that a protection finding would no longer be made has not been made, or the person has not been asked in writing to be removed.

4. The Applicant was previously granted a Subclass 790 visa. In making a decision to grant this visa, a finding was made that he met s 36(2)(a) and 36(1C) of the Act. As a result, he there is no obligation to remove him from Australia unless a decision is made under s 197D of the Act that a protection finding would no longer be made.

5. The Applicant made extensive submissions on the non-refoulement obligations owed by Australia, however as he is the subject of a protection finding he will not be removed from Australia and Australia’s non-refoulement obligations will not be breached by a decision not to revoke the cancellation of his visa. 

6. As he cannot be removed, unless he is granted another visa, the Applicant is an unlawful non-citizen and must be detained under s 189 of the Act unless granted another visa.

7. The Applicant was granted a BVR on 21 August 2024 as there are no reasonable prospects of him being removed from Australia becoming practicable in the reasonably foreseeable future in accordance with the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[37]  

   [37] [2023] HCA 37.

8. A BVR is a visa that permits the visa holder to remain in Australia and which ceases on the Minister giving notice that the Minister is satisfied that the visa holder’s removal from Australia is reasonably practicable, or the holder has breached a condition to which the visa is subject.[38] In addition, failing to comply with the conditions on his BVR may result in the Applicant committing offences under the Act and, if convicted, the Court must impose a sentence of imprisonment of at least 12 months.[39]

   [38] Migration Regulations 1994 (Cth) sch 2 pt 070 cl 070.511.

   [39].Migration Act 1958 (Cth) s 76DA.

9. The BVR granted to the Applicant was subject to 27 conditions, which are included in Attachment 1 to this decision. As found in YBFZ the curfew and monitoring conditions are invalid.

10. The remaining conditions which, if breached, result in the commission of an offence are:

    ·     A condition that requires the person not perform work or participate in regular organised activity involving more than incidental contact with a person who is a minor or other vulnerable person.[40]

    ·     A condition not to go within a certain distance of a school, childcare centre or day care centre.[41]

    ·     Where (as in this case) the person has been convicted of an offence involving violence or sexual assault and a condition is imposed not to contact or attempt to contact the victim of the offence or a member of the victim’s family[42] unless there is a reasonable excuse as defined in s 76DAC(3) of the Act.

    [40] Ibid s 76DAA.

    [41] Ibid s 76DAB.

    [42] Ibid s 76DAC.

11. It was submitted that the Applicant has complied with the conditions of his visa in the community.  However, due to my concern about the Applicant’s potential contact with the M’s mother, at the start of the hearing I advised the Applicant that he did not have to answer questions that may incriminate him.  He was specifically warned that he was not required to answer any questions about his contact with the victim’s mother, his wife, in the period after he was released from immigration detention as this may make him liable to a criminal offence[43] or a civil penalty in the form of the cancellation of his BVR.[44] 

    [43] Ibid.

    [44] Migration Regulations 1994 (Cth) Sch 2 pt 070 cl 070.511(c)(ii).

12. The condition which limits his contact with his wife is condition 8625 which is:

    If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family. 

13. An adjournment was provided to allow the Applicant to speak to his legal representative before giving oral evidence.  His legal representative sought a further adjournment because documents submitted for the Applicant may show he had breached this condition.  I declined to adjourn further.  This request was declined because:

    ·The documents had been submitted to the Tribunal and copied to the Minister by a lawyer acting for the Applicant;

    ·The time limited nature of the review did not allow for further adjournments,

    ·The Applicant has been warned and provided the opportunity to speak with his representative before giving evidence; and

    ·As the Applicant was represented, his representative could raise the privilege against self-incrimination at any time while the Applicant was giving oral evidence. 

14. The Applicant was not required to answer any questions about his contact with his wife in the period after he was granted a BVR. However, in closing, his representative made submissions that, if he did have contact with his wife, the Applicant would have a reasonable excuse to be in contact with his wife as specified in s 76DAC(3) of the Act. Section 76DAC of the Act creates a criminal offence for a breach of this condition and, as a Tribunal, I cannot consider whether he has committed a criminal offence. Despite being invited to do so, the Applicant’s representative did not make further submissions about the possibility that the Applicant’s visa would be cancelled due to him breaching the conditions of his visa.

15. While it is clear the Applicant had contact with his wife while he was in immigration detention, I do not have specific information before me that he has contacted or has attempted to contact his wife while he was in the community and subject to the conditions on his BVR.  While his wife attended to give evidence and provided statements, she did not specify that the Applicant has contacted her while in the community, and as he is represented her statements and appearance at the Tribunal does not itself establish he has contacted or attempted to contact her.  In the absence of specific evidence that this occurred, I make no findings on this point. 

16. However, I remain mindful that if his BVR is cancelled he will again be detained and if issued a further BVR the amendments in the Migration Amendment (Bridging Visa Conditions) Regulations 2024 may result in curfew and monitoring conditions again being imposed. 

17. The Applicant said he feels more able to access rehabilitation services and employment without these conditions.  However, given he did not earlier raise any barrier to attending rehabilitation I do not place weight on this assertion.  He had previously said the curfew affected his ability to seek employment at his last place of work because he would need to leave for work at 4am, and I accept that the removal of the curfew allows him to seek work with his previous employer. 

18. The Applicant signed an acknowledgement of these conditions being imposed on 21 August 2024.[45] The Applicant said he has a habit of signing anything placed in front of him, and he did not read the conditions imposed on his visa when he signed the acknowledgement of these conditions.  It is the Applicant’s responsibility to be aware of the conditions of his visa.  He has been represented since at least 25 July 2024, when his lawyer made submissions about revoking of the cancellation of his visa, approximately a month before his BVR was granted.  His lawyer made submissions about the Applicant’s compliance with the conditions of his visa, which implies he was aware of these conditions. 

    [45] Ex R4.

1. At the time of this decision, the legal effect of the Applicant’s visa being cancelled is that he will remain in Australia in the community holding a BVR that is not subject to a curfew or monitoring conditions.  It is subject to conditions that impose restrictions on his activities and the type of employment he can undertake in Australia, he cannot acquire weapons or explosives, and must obtain approval to acquire chemicals of concern.  He must advise the Minister of people he lives with and any interstate or overseas travel.  There are restrictions on his ability to associate with organisations and engage in activities involving minor or vulnerable persons and must advise Immigration of changes to his circumstances.  

2. The Applicant will remain in Australia.  He can work and obtain medical treatment and undertake community activities within the scope of the conditions on his BVR.     

3. However, the most significant condition imposed is that he is not to have contact with his wife.  The imposition of this condition is not discretionary.  Both the Applicant and his wife say they want to resume their marital relationship.  It will cause significant hardship to both the Applicant and his wife and result in the permanent separation and an inability to contact each other while he remains on a BVR. 

4. Overall, and given the condition that prevents the Applicant contacting his wife, the legal effect of the decision attracts moderate weight in favour of revoking the cancellation of the Applicant’s visa.

   Extent of impediments if removed

5. Clause 9.2 of the Direction provides the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.  This must take into account the Applicant’s age and health, language and cultural barriers and social, medical and/or economic support available to the Applicant in their country.

6. The Applicant will not be removed from Australia as there is a protection finding that prevents his removal.  If his visa remains cancelled, he will remain in the community on a BVR.  As he will not be removed from Australia, this consideration generally does not apply.  However, it does raise other items for consideration about the impediments imposed because he is on a BVR.

7. The Applicant is 57 years old.  He has a heart condition, and while generally asymptomatic it is recommended that he have surgery.  This risk to his health if he does not have surgery is high.  Further investigation and an angiogram were conducted while he was in immigration detention.  He also said he suffers some depression and anxiety, which only commenced after he went to immigration detention.  He suffered less from this while in prison.  The Applicant has accessed and can continue to access health services in Australia, and while he was invited to provide further submissions on his access to health services, it was not submitted that his access to health services will be impeded if he is on a BVR. 

8. He is able to work within the restrictions that he must notify the Minister of any changes to his employment details (condition 8552), cannot work with minors (condition 8622) and must not approach a school or childcare centre (condition 8623). 

9. While the extent of impediments if removed does not apply, the restrictions on his ability to work attracts slight to negligible weight in favour of revoking the cancellation of his visa. 

   Impact on Australian business interests

10. Clause 9.3 of the Direction states that 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 would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

11. The Applicant will not be removed from Australia and can return to his usual work, and there is no impact on Australian business interests.

    CONCLUSION

12. The Applicant does not pass the character test under s 501 of the Act, and I must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.

13. Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.

14. There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[46]

    [46] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

15. The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[47]

    [47] [2023] FCAFC 138, [23].

16. In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction. 

17. Greater weight must generally be given to the protection of the Australian community than other primary considerations.  Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[48]  In the circumstances of this case I consider the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations.

    [48] Ibid [27].

18. Bringing the considerations together, the primary consideration of the protection of the community, which generally must be given greater weight than other primary considerations, weighs moderately in favour of not revoking the cancellation of the Applicant’s visa.  The expectations of the Australian community and family violence committed by the Applicant weigh heavily in favour of not revoking the cancellation.  The best interests of minor children are neither for nor against revocation, and the strength, nature and duration of ties to Australia weigh somewhat in favour of revoking the cancellation of the visa.  The legal consequences of the decision weigh moderately in favour of revoking the cancellation, and the extent of impediment weighs slightly in favour of revoking the cancellation.  The impact on Australian business interests does not weigh for or against revoking the cancellation of the visa.

19. In the circumstances of this case, the expectations of the Australian community, family violence committed by the Applicant, and the protection of the community outweigh other considerations that are in favour of revoking the cancellation of the Applicant’s visa.  As a result, I am not satisfied there is another reason to revoke the cancellation of the Applicant’s visa and the decision under review is affirmed.  

    DECISION

20. The decision not to revoke the cancellation of the Applicant’s Subclass 851 (Resolution of Status) visa under s 501CA(4) of the Act is affirmed.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Millar.

………………………………………

Associate        
Dated:  13 November 2024   

Date of hearing:	4 and 5 November 2024
Advocate for the Applicant:	Thuan Nguyen, Talon Legal
Advocate for the Respondent:	Jonathan Djasmeini, Minter Ellison

ATTACHMENT 1

Bridging R (Class WR) (Removal Pending) (subclass 070) VISA CONDITIONS

8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the
Australian community or a group within the Australian community.

8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.

8514 – No change in circumstances
During the visa period of the visa, there must be no material change in the circumstances on the basis of
which it was granted.

8541 - Must Assist with Removal
The holder:
(a) must do everything possible to facilitate his or her removal from Australia; and
(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

8542 – Report for removal from Australia
The holder must report in person for removal from Australia in accordance with instructions given, orally or in
writing, by the Minister.

8543 - Facilitate removal from Australia
The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to
facilitate efforts to arrange and effect his or her removal from Australia.

8551 – Obtain approval for certain occupations
(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations,
or occupations of a similar kind:
(a) occupations that involve the use of, or access to, chemicals of security concern;
(b) occupations in the aviation or maritime industries;
(c) occupations at facilities that handle security-sensitive biological agents.
(2) In this clause:
Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for
this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian
Governments, as chemicals of security concern. Without limiting what the Council might identify the
chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa
sectors, that could be diverted from their lawful use to other purposes such as terrorist-related
activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other
purposes, including terrorist-related activities.

8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2
working days before the change is to occur.

8553 – Must not be involved in activities prejudicial to security
The holder must not become involved in activities that are prejudicial to security (within the meaning of
section 4 of the Australian Security Intelligence Organisation Act 1979).

8554 – Must not acquire specified goods
(1) The holder must not acquire any of the following goods:
(a) weapons;
(b) explosives;

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(c) material or documentation that provides instruction on the use of weapons or explosives.
(2) In this clause:

weapon means a thing made or adapted for use for inflicting bodily injury.
8555 – Obtain approval before undertaking specified activities
The holder must obtain the Minister’s approval before undertaking the following activities, or activities of a
similar kind:
(a) flight training;
(b) flying aircraft.

8556 – Must not communicate with specified entities or organisations
The holder must not communicate or associate with:
(a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or
(b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the
purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the
Criminal Code.

8560 – Obtain approval to acquire chemicals of security concern
(1) The holder must obtain the Minister’s approval before acquiring chemicals of security concern.
(2) In this clause:
chemicals of security concern means chemicals specified by the Minister in an instrument in writing for
this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian
Governments, as chemicals of security concern. Without limiting what the Council might identify, the
chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa
sectors, that could be diverted from their lawful use to other purposes such as terrorist-related
activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other
purposes, including terrorist-related activities.

8561 – Must attend interview if directed
If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day
and at a specified time, an interview that relates to the holder’s visa (including an interview with the
Australian Security Intelligence Organisation), the holder must comply with the direction.
8562 – Must not take up specified employment
(1) The holder must not take up employment in:
(a) occupations that involve the use of, or access to, weapons or explosives; or
(b) occupations of a similar kind.
(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.

8563 – Must not undertake specified activities
(1) The holder must not undertake the following activities, or activities of a similar kind:
(a) using or accessing weapons or explosives;
(b) participating in training in the use of weapons or explosives;
(c) possessing or accessing material or documentation that provides instruction on the use of
weapons or explosives.
(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.

8612 - Notify details of persons who reside with the holder
If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the
holder:
(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of
each person who ordinarily resides with the holder at the holder’s residential address; and

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(b) must notify immigration of any change in the persons who ordinarily reside with the holder at the
holder’s residential address within 2 working days after the change occurs.

8614 – Notify travel
The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days
before undertaking the travel.

8615 - Notify associations and memberships
(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the
holder must:
(a) within 5 working days of the grant, notify Immigration of the details of the holder’s association
with, or membership of, any organisation that engages in activities involving more than incidental
contact with minors or any other vulnerable persons: and
(b) notify Immigration of any change in those details (including the beginning or end of any
association or membership) within 2 working days after the change occurs.
(2) Subclause 1 does not apply in relation to the following:
(a) an organisation formed for a purpose of engaging in communications on governmental or political
matters;
(b) an organisation whose regular functions or activities involve communication on governmental or
political matters.

8616 – Notify contact with certain individuals or organisations
(1) The holder must notify Immigration of the details of any contact with any individual who is known by the
holder to have been charged with, or convicted of, a criminal offence.
(2) Subclause (1) does not apply to:
(a) contact in the course of attending a therapeutic or rehabilitative service; or
(b) contact in connection with legal proceedings or legal advice or
(c) incidental contact.

8620* – Abide by specified curfew
(1) The holder must, between 10pm on one day and 6am the next day or between such other times as are
specified in writing by the Minister, remain at a notified address for the holder for those days.
(2) If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8
hours apart.
(3) in this clause:
Notified address for a holder for a particular day or days means any of the following:
(a) Either:
(i) the address notified by the holder under condition 8513; or
(ii) if the holder has notified another address under condition 8625 – the last address so notified
by the holder.
(b) an address at which the holder stays regularly because of a close personal relationship with a
person at that address, and which the holder has notified to Immigration for the purposes of this
paragraph;
(c) if, for the purposes of this paragraph, the holder notified Immigration of an address for that day or
those days no later than 12 pm on the day before that day or the earliest day of those days (as the
case may be) – that address.
*Your visa is subject to the above condition for a period of 12 months from the date of grant.

8621* – Monitoring device
(1) The holder must wear a monitoring device at all times.
(2) The holder must allow an authorised officer to fit, install, repair or remove the following:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(3) The holder must take any steps specified in writing by the Minister and any other reasonable steps, to
ensure that the following remain in good working order:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(4) if the holder becomes aware that either of the following is not in good working order;

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(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device;
The holder must notify an authorised officer of that as soon as practicable.
*Your visa is subject to the above condition for a period of 12 months from the date of grant.

8622 – Must not perform work with minors
(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the
holder must not perform any work, or participate in any regular organised activity, involving more than
incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is
required in relation to the work.

8623 – Must not approach school or childcare centre
If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the
holder must not go within 200 metres of a school, childcare centre or day care centre.

8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not
contact, or attempt to contact, the victim of the offence or a member of the victim’s family.

8625 – Notify changes in personal details
The holder must notify the Minister of any change in the following:
(a) the holder’s name;
(b) an address of the holder;
(c) a phone number of the holder;
(d) an email address of the holder;
within 2 working days after the change occurs.

8626 – Notify change in online names or profiles
If the holder has been convicted of an offence involving a minor or any other vulnerable person, the holder
must notify the Minister of any change in the following:
(a) an online profile used by the holder;
(b) a user name of the holder;
within 2 working days after the change occurs.