PHTP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3536

PHTP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3536 (30 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6043
Re:PHTP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:30 October 2023
Place:Perth

The decision of the delegate of the Minister dated 16 August 2023 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise (Temporary) visa is affirmed
...........[Sgd].............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – applicant is a citizen of Afghanistan – granted a Safe Haven Enterprise Visa - Direction 99 considered – reckless wounding – medium high risk of reoffending – unresolved PTSD and other mental health issues – drug and alcohol addictions – need for ongoing, consistent and detailed psychotherapy – lack of support if released into community - legal consequences of “reinstating” expired visa limited - protection of community and expectations of community weigh against revocation of cancellation of visa – legal consequences of cancellation weigh in favour of revocation - considerations against revocation of the cancellation of the applicant’s visa outweigh those in favour of revocation of cancellation – weighing and balancing exercise – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 500(4A)(c), 501(3A), 501(6), 501(7), 501CA(4)
CASES
BHKM and Minister for Immigration and Border Protection [2018] AATA 3
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
ECE21 v Minister for Home Affairs [2023] FCAFC 52
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs ([2019] FCA 500
FYBR v Minister for Home Affairs ([2019] FCAFC 185; (2019) 272 FCR 454
Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Minister for Home Affairs v HSKJ ([2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ([2020] AATA 3953
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Wightman and Minister for Immigration ([2021] AATA 1208
WKCG and Minister for Immigration and Citizenship ([2009] AATA 512; (2009) 110 ALD 434
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs
XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 783
YNQY v Minister for Immigration and Border Protection ([2017] FCA 1466
SECONDARY MATERIALS
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, 5.2, 6, 7, 8, 8.1, 8.1.1(1)(a)-(e), 8.1.2(1), 8.1.2(2)(a)-(b), 8.2(1)-(3), 8.3(1)-(4), 8.4(1)-(4), 8.5(1)-(4), 9.1, 9.2, 9.3, 9.4
REASONS FOR DECISION
Deputy President Boyle
30 October 2023
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 16 August 2023[1] under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise (Temporary) visa.
[1] R1/7-28.
The Applicant’s visa was cancelled on 2 August 2022[2] under s 501(3A) of the Act (see [12] below) because the Applicant did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more[3] and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the State of New South Wales.
[2] R1/73.
[3] Sections 501(6)(a) and 501(7)(c) of the Act.
The Applicant made representations for the revocation of the cancellation of his visa, and on 16 August 2023, a delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above). The Applicant was advised of that decision on 17 August 2023[4] and lodged the present application with the Tribunal on 17 August 2023.
[4] R1/4.
BACKGROUND
The Applicant is a citizen of Afghanistan born in December 1991.
The Applicant first arrived in Australia by boat in January 2013 aged 21 and has since remained in Australia.
The Applicant applied for the visa the subject of these proceedings on 26 July 2016 and was granted the visa on 20 October 2017.
On 5 March 2021, a delegate of the Respondent sent a Notice of Intention to Cancel the Applicant’s visa under s 107 of the Act. The Applicant did not respond, and the delegate cancelled the Applicant’s visa on 9 April 2021.[5]
[5] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) para [14].
On 30 June 2022, the Administrative Appeals Tribunal’s Migration and Refugee Division set aside that decision to cancel the Applicant’s visa under s 107 of the Act and substituted a decision not to cancel the Applicant’s visa.
On 1 July 2022, the Applicant was convicted of reckless wounding and sentenced to three years and three months imprisonment with a non-parole period of two years.
Between 21 June 2018 and 1 July 2022, the Applicant was convicted of the following offences as disclosed by the Australian Criminal Intelligence Commission Check Results Report:[6]
[6] R1/30.

Court Date Of Conviction Offence Result

Parramatta District Court 01/07/2022
Reckless wounding
IMPRISONMENT:
3 YEARS AND 3 MONTHS
COMMENCING 22/02/2021
CONCLUDING 21/05/2024
NON-PAROLE PERIOD: 2 YEARS

Fairfield Local Court
24/02/2021 Shoplifting value <=$2000-T2
Enter enclosed land not presc premises w/o lawful excuse
FINE: $800

S10A CONVICTION
WITH NO OTHER PENALTY

Bankstown Local Court 18/02/2021 Attempt stalk/intimidate intend fear of harm (personal)-T2
Shoplifting-T2
Possess Schedule 9 substance
Fail to appear in accordance with bail acknowledgment x 3
S10A CONVICTION WITH NO OTHER PENALTY

COMMUNITY
CORRECTION ORDER: 12
MONTHS COMMENCING 18/02/2021
CONCLUDING 17/02/2022

Fairfield Local Court 03/08/2020 Attempt stalk/intimidate intend fear of harm (personal)-T2 COMMUNITY CORRECTION ORDER: 12 MONTHS COMMENCING 18/02/2021
CONCLUDING 17/02/2022

Liverpool Local Court 12/06/2019 Behave in offensive manner in/near public place/school
Resist or hinder police officer in the execution of duty
FINE: $400

FINE: $500

Burwood Local Court 21/06/2018 Common assault – T2 FINE: $1,000

On 21 February 2023, at the conclusion of the non-parole period of the 1 July 2022 sentence for reckless wounding, the Applicant was released from gaol and taken into immigration detention, initially at the Villawood Immigration Detention Centre and then the Yongah Hill Immigration Detention Centre where he remains.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.
(Original emphasis.)
Section 499(1) of the Act provides that:
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.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
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.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(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 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(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) (sic) (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.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(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.
Paragraph 8 of Direction 99 is as follows:
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 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE ISSUE FOR DETERMINATION
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 12 and 13 October 2023. Ms K Wrigley appeared for the Applicant and Ms C Oppel appeared for the Minister. The Applicant and Mr Tim Watson-Munro, a clinical psychologist, gave oral evidence at the hearing.
The following documents were admitted into evidence:
(a)Applicant's Evidence Bundle (A1);
(b)Applicant's Supplementary Evidence Bundle (A2);
(c)Section 501G Documents (R1); and
(d)Respondent's Tender Bundle (R2).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[7] The character test is defined in s 501(6) of the Act (see [13] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [14] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and therefore he has a substantial criminal record and, as a result, does not pass the character test.
[7] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66.
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 2 August 2022. I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.[8]
[8] a valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act – see PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... 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.
(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 (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly 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)...
(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;
...
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;
...
The Applicant’s SFIC made the following submissions and contentions in relation to this consideration:[9]
[9] Applicant’s SFIC pp 3-5.
(a)The Applicant accepts that his conduct was wrongful and has had adverse consequences for members of the Australian community.
(b)His criminal conduct has been at the low range of objective seriousness, involving low range larceny, drug offences, and common assault offences.
(c)The Applicant has consistently expressed remorse for the offences, and he has taken full responsibility for both his conduct and for the circumstances, namely his drug addiction, which were the context within which he committed the offences.
(d)None of the Applicant’s offences was sexual in nature, involved violence directed against women or children, or involved family violence. None of his offences was directed against vulnerable members of the community.
(e)The Applicant’s conviction for reckless wounding involved the victim “blocking any path of retreat” to the Applicant, and the Applicant “attempting to distance himself from the victim”.
(f)The victim “adopted a stance and a series of actions that are unmistakably aggressive” (citing the sentencing judge’s remarks) and the Applicant “plainly was being intimidated, persistently and physically” and there was a high level of provocation to the response.
(g)The sentencing judge described the situation in which the offence occurred as “arising in the context of the excessive self-defence” and “in the context of a loss of control by the offender, in a setting whereby he had been grossly intimidated and pressed”.
(h)
The offences were committed “in a background of considerable hardship are such as to somewhat reduce his moral culpability” (citing the sentencing judge’s remarks).

The sentencing judge noted that the Applicant had “a level of remorse”.
(i)The Applicant’s criminal record prior to this conviction was described by the sentencing judge as “relatively minor”.
(j)The Applicant acknowledges that his substance use contributed to his aggression and criminal offending.
(k)Since being incarcerated, the Applicant has abstained from illicit drug use, and the evidence suggests that the Applicant has been of good behaviour in both gaol and immigration detention.
(l)Prior to 2022, the Applicant’s offences were dealt with by community correction orders, fines and dismissal of charges. The Applicant concedes that his repeated offending was a factor in him eventually receiving a custodial sentence.
(m)The Applicant’s circumstances at the time of his offending reflect the various social, mental and health related issues he was experiencing, rather than his character as a violent or aggressive person. These include the Applicant’s dependence on methylamphetamine.
(n)The offences prior to his reckless wounding offence were committed when the Applicant was “still struggling with dependency issues”.
(o)The Applicant has shown remorse, understands that his offending behaviour was wrong and pled guilty at each available opportunity which is indicative of the Applicant taking responsibility for his actions.
(p)The Applicant has also proactively sought to address the circumstances that led to his actions by cutting ties with his former acquaintances, attending drug and alcohol counselling and accessing the methadone program when it has been made available to him.
(q)The prolonged periods of time that the Applicant has spent in detention and prison have given him an opportunity to reflect on his life and actions in the community. He has identified his previous relationships and substance abuse as harmful factors which contributed to his offending. The Applicant understands being in Australia is a privilege and that he abused this privilege when he reoffended.
(r)The Applicant has expressed an intention to enter Australia’s workforce with the motivating factor of his wife and daughters to provide for and to save up the funds to bring them to Australia to be with him. This is a positive sign that he recognises the seriousness of his reoffending and the importance of protective factors such as stable employment to safeguard against future criminal conduct.
The Minister’s Statement of Facts, Issues and Contentions (Minister’s SFIC) made the following submissions and contentions in relation to this consideration:
(a)The Applicant has convictions for violent crimes (para 8.1.1(1)(a)(i) of Direction 99) being the common assault committed in March 2018 and the reckless wounding committed in February 2021.
(b)The Applicant has been convicted of offences against government officials in the performance of their duties (para 8.1.1(1)(b)(ii) of Direction 99) being the convictions for resist or hinder police and behave in an offensive manner in a public place.
(c)Relevant to para 8.1.1(1)(b)(iii) of Direction 99, the Applicant has convictions for attempting to stalk/intimidate, shoplifting, possession of drugs, multiple failures to appear in court and breaching community-based orders.
(d)The Applicant was in state custody on the following dates:
(i)23 September 2019 – 22 April 2020 (released to bail);
(ii)5 June 2020 (released to bail);
(iii)19 June 2020 – 6 July 2020 (released to bail);
(iv)23 January 2021 (released to bail);
(v)13 February 2021 (released to bail);
(vi)18 February 2021 (released on a Community Corrections Order);
(vii)24 February 2021 – 21 February 2023 (released to parole, expiry 21 May 2024)
(e)Corrective Services NSW have provided a generally positive report of the Applicant’s time in their custody, indicating that he was employed between June 2021 and March 2022 and that, save for a few non-appearances, he “works well without supervision and …with other inmates.”
(f)There is a trend of increasing severity in the Applicant’s offending between 2018 and early 2021 (para 8.1.1(1)(c)(d) of Direction 99).
(g)The Applicant’s offending has caused harm to many of his victims and required the expenditure of public resources to deal with his offending (para 8.1.1(1)(e) of Direction 99).
(h)The Applicant has one reported incident in immigration detention, involving the attempted introduction of contraband (vapes, cigarette lighters, tablets, syringes and vape liquid) into the facility in May 2023, concealed within a mail delivery.
The most serious of the Applicant’s offences is the reckless wounding, to which he pled guilty and was sentenced in July 2022. The Applicant received a term of imprisonment of three years and three months. In sentencing the Applicant, Judge Craigie made the following observations and findings:[10]
[10] R1/32-49.
…Inherent seriousness of that offence contrary to s 35(4) of the Crimes Act 1900 is indicated by the maximum penalty when dealt with in this Court, which is 7 years imprisonment. There is a Standard non-parole period of 3 years imprisonment, which is an important statutory guidepost also bearing on inherent seriousness and which may be required in particular circumstances.
…there was an encounter shortly before 11.00pm on 21 February 2021 between [the Applicant] and the victim. The outcome of that encounter was that [the Applicant] repeatedly stabbed the victim. The victim sustained a number of wounds including to his body, his neck and on the hand. [The Applicant] was apprehended shortly thereafter.
The Agreed Statement of Facts indicates that part of the encounter involved a discussion whereby [the Applicant] had asked the victim for some ice, but said he did not have any money. It was the outcome of an apparent reaction to this that brought about the offence now before the Court.
…
The man who soon is plainly to be regarded to as the victim is of slight build. As the two men approached the corner of the laneway as it opens out onto Miller Street, an individual who it is agreed is the offender, crossed Miller Street approaching their location.
…
…At a point shortly after he [the Applicant] enters Post Office Lane, his course intersects with that of the victim and the victim’s companion.
…The time at which [the Applicant] comes into contact with the victim is recorded as 28.43. At this point, they face each other in apparent communication of some kind and there is a momentary physical contact consistent with shaking hands, albeit that this contact continues longer than the usual and customary simple gesture of acknowledgement between two men…
There appears to be an accompanying verbal interaction, which I strongly infer was the interaction described in the Agreed Statement of Facts, whereby some discussion took place as to the possibility of [the Applicant] obtaining the drug ice. The response on the part of the victim is a strong one. He appears to have reacted with a persistent attitude of some extreme irritation generated by whatever it was [the Applicant] had said. The Agreed Statement of Facts records that [the Applicant] asked the victim for ice. The facts state that the victim responded by staying words recorded in the facts as “Don’t do this or I will take your pants out”. … what is clear from the video footage is that within four or five seconds, [the Applicant] turned his body away from the victim and started to back away. The clear impression of the Court is that something had been said that caused him to react in that way. Having turned his body, as if to back away, he then in fact ran, for what it appears to be no more than three or four meters. As he did so, he was remaining still in full view of the camera and also facing the victim.
The victim appeared determined to close with [the Applicant]. From that point, the victim persisted in demonstrating this through a serious of movements, whereby where ever [the Applicant] chose to turn or retreat, as he did walking backwards and facing the victim, the victim would place himself in a series of blocking positions; on a number of occasions being close up to, if not in contact with the offender and in a face-to-face attitude of confrontation. The victim matched each movement made by [the Applicant] . Those movements by [the Applicant] I would find more probably than not were in every instance, apart from the outbreak of actual violence, an attempt to distance himself from the victim. The victim adopted a stance and a series of actions that are unmistakably aggressive. One aspect is that he can be seen with his head thrust forward in a determined stance when he strides towards [the Applicant]. Then, as the offender turns to take another path, indeed continuing upon his intended journey out of the laneway, the victim blocks any path of retreat.
There are a number of movements and counter movements between the two men. They resulted in [the Applicant] retreating to one side of the laneway and then, when blocked, moving to the other side of the laneway. In each of the series of movements that [the Applicant] makes, the victim responded blocking him. At least one of these movements involved the victim pushing [the Applicant] . A careful viewing of the video indicated a minimum of 10 distinct movements in which [the Applicant] unsuccessfully tried to move away from the victim.
…At this point, he turned and faces the victim. His upper garment flares open. He then engages in a series or rapid actions with his arm consistent with striking out at the victim. It is clear that at this point he has produced the kitchen knife that was later found by police. In response, the victim rapidly backs away in retreat, initially moving from where he had been facing [the Applicant] in the left side of the lane to a position where he was on the right side of the lane with his back to the wall of the building that delineated the right kerb side of the laneway. [The Applicant] however kept striking at the victim in what was a continuous flurry of blows.
…
The victim sustained a number of injuries. They were of a nature that at least necessitated four days in hospital. The injuries were a 5 cm wound to the left side of his neck. The wound required surgical stapling. Further, there was a 15 cm wound to the right anterior chest that also was treated by surgical stapling. The victim had a 2 cm wound to the left posterior chest. He also had a stab wound to the left hand. As to those injuries, I would regard them as consistent with a dynamic encounter, whereby there were multiple blows struck of which four clearly resulted in sufficient contact with a knife to bring about wounds, including one on the hand, which is consistent with a defensive wound.
I find that the wounds to the chest and more particularly the neck carried an inherent degree of potential peril to the victim,… the number and location of the wounds conveys its own level of seriousness.
…
[The Applicant] is a man with a relatively minor criminal record. However, that record does him no credit and denies him the status of a person whose prior good character is to be weighed in assessing an appropriate penalty. He was also at conditional liberty at the time of the present offending; that being in the form of Community Corrections orders for a number of offences. He is in breach of the resulting orders, as he admits, and those matters have been called up for disposition before me.
…
…His family consists of his wife and two children, who remain in Afghanistan.

He has not had any contact with them since August of last year. The author of the report[11] was told by the offender that he is a person who is dependent on the Afghan community to obtain any assistance with accommodation and other support in the absence of any family in this country.
[11] A reference to the Sentencing Assessment Report prepared by Nadel Kryem.
…
[The Applicant] ’s antisocial behaviour Is regarded as connected to factors of unaddressed mental health, drug dependence issues, and a lack of pro-social supports in the community. In addressing his attitudes, [the Applicant] told [psychologist] Ms Krayem that; whist he acknowledges stabbing the victim, he maintained that he did so in an act of self-defence as he felt threatened by the victim. He is described as taking minimal responsibility for the offence and blamed the victim for the assault.
…
[The Applicant] denied that he was a person who was either violent or aggressive. He said that he commenced using alcohol and more importantly drugs in 2016. That had resulted in substance dependency.
…
I do not find that [the Applicant]’s involvement with ice, let alone an argument about obtaining it in anyway mitigates. I do find, however, that his underlying circumstances, in a background of considerable hardship are such as to somewhat reduce his moral culpability.
…
His supposed attribution of blame to the victim, I do not regard as particularly adverse to his prospects of rehabilitation. It is often the case that there is a thin line between what a Sentencing Assessment Report regards as minimisation and a simple description of the facts as they were. [The Applicant] by his plea indicates that he understands he had absolutely no entitlement to act as he did. He is otherwise entitled to point to any explanation for behaviour of the kind as committed by him as a 30-year-old man with nothing in his record that approaches that level of seriousness.
…
The location of the wounds, in particular that to the neck, also heightens the objective seriousness. That [the Applicant] continued as the victim was backing away is to his considerable discredit, although I note that he moved quickly from being the hunted for most of the video footage to a reaction that would indicate that he had simply had enough. Nonetheless, he did not desist when the tables were turned and he found his victim as it were cowering with his back against a wall.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) - the Applicant has been convicted of crimes of violence (common assault in June 2018 and reckless wounding in July 2022). I am obliged to take into account that the Australian government and the Australian community consider these crimes to be very serious. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99 (Singh v Minister for Immigration, Citizenship and Multicultural Affairs;[12] see also Price v Minister for Immigration, Citizenship and Multicultural Affairs.[13]
(b)Paragraph 8.1.1(1)(b)(ii) – the June 2019 conviction for resist/hinder police is an offence committed against a government representative in performance of their duties and falls into the category of offending that comes within this subparagraph. Again, noting the direction provided by the Courts in Singh and Price referred to in subpara (a) above of needing to make my own assessment, I take into account the Australian government and the Australian community’s view of such offending as being considered to be serious.
(c)
Paragraph 8.1.1(1)(c) – the Applicant has been sentenced to a term of imprisonment on one occasion, that being for the reckless wounding. As noted by Judge Craigie, the maximum sentence for that offence is seven years with a standard non-parole period of three years imprisonment (see [35] above).

The sentence imposed by the Court was in line with that standard. For his other offences that Applicant has received community correction orders and fines or no conviction.
(d)Paragraph 8.1.1(1)(d) – the Applicant has been convicted of 13 offences in the period from June 2018 to July 2022. Accordingly, his offending has been frequent and, given that the most serious of his offending was the reckless wounding for which he was sentenced in 2022, there is a trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) – with the exception of the reckless wounding, the Applicant’s offending has been relatively minor. However, the cumulative effect and the frequency of offending, with an increase in the seriousness of the offending, indicates that the Applicant is unwilling, or unable, to comply with the law. As the Minister correctly noted, the other cumulative effect of the Applicant’s offending is the harm that has caused to his victims and the expenditure of public resources to deal with his offending.
[12] (2023) 296 FCR 582 at [73] per Snaden J.
[13] [2023] FCAFC 171 at [71].

As noted above, para 8.1.1(1)(a) of Direction 99 requires the decision-maker to take into account the views of the Australian government and the Australian community that crimes of violence are to be viewed “very seriously”. Independently of that view, the particulars of the Applicant’s reckless wounding, the use of a knife and the sustained nature of the Applicant’s actions which resulted in serious injury, warrant that offence being considered to be very serious. While the other offences committed by the Applicant could individually be considered as minor, reflected by the imposition of fines and community correction orders, the frequency of the Applicant’s offending is a concern. He has committed numerous offences over a relatively short period. Taking those matters into account, I assess the Applicant’s criminal record to be serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly 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.
(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 non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The only submission made by the Applicant in relation to this aspect of the consideration was at para 40 of the Applicant’s SFIC which was:
In relation to the “nature of the harm: to individuals or the Australian community, we refer to the preceding discussion in paragraph 46 and submit that the nature of the Applicant’s conduct is well below the level of seriousness outlined in section 8.1.1 of Direction 99.
Apart from the obviously erroneous reference to “preceding discussion in paragraph 46”,

I do not understand the submission. Subparagraph 8.1.2(2)(a) requires consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct. The premise of the submission that somehow para 8.1.1 of Direction 99 sets a level of seriousness is wrong and, even if it did, it is irrelevant to the consideration directed by para 8.1.2. What para 8.1.1 does is identify factors to take into account when assessing the seriousness of the non-citizen’s offending. What para 8.1.2 of Direction 99 requires is a consideration of the harm that would be caused if the Applicant were to repeat his offending or other serious conduct. That is a different consideration to that identified in para 8.1.1 going to the seriousness of the non-citizen’s offending.
The Minister’s SFIC submitted that:[14]
… should the applicant engage in further criminal or other serious conduct that there is a real prospect that it could cause emotional, financial and physical harm to the Australian community and that this has the potential to be very serious.
[14] Minister’s SFIC para [30].
The type of harm that would be caused if the Applicant were to repeat the conduct that resulted in his being convicted of reckless wounding is potentially very serious. As the Minister submitted, that harm is potentially greater than the physical injury that is suffered by a victim. It extends to the type of emotional or psychological harm of the kind suffered by the victim of the Applicant’s reckless wounding, as described by the sentencing judge in the following terms:[15]
I also in sentencing the offender recognise the harm done to the victim, who must have been terrified by what happened and suffered as is apparent in the video, injuries of considerable distress, pain and fear.
[15] R1/48):
In a letter sent to the court prior to the Applicant’s sentencing, the Applicant acknowledged that his actions would have “terrified and traumatised” the victim.[16] That is obviously the case and would likely be the case if the Applicant were to repeat that conduct.
[16] R1/89).
I find that the harm to individuals or the Australian community should the Applicant engage in the violent behaviour that he has in the past is serious. This is particularly the case given the use of a knife in the reckless wounding incident and the Applicant’s admission in his supplementary statement that he carried a knife.[17] While the harm likely to be caused should the Applicant repeat the conduct that gave rise to his other convictions is less serious, the harm caused by stalking, offensive behaviour and the time and public resources wasted by such behaviour is not insubstantial.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
[17] See para [48(c)] below)
The Applicant’s SFIC was to the following effect:[18]
(a)While dealing with s 36(1C) of the Act, the comments of Deputy President Tamberlin QC in WKCG and Minister for Immigration and Citizenship[19] undertook a similar task to assess the risk to the community.
(b)The Applicant’s risk of reoffending is low based on:
(i)The Applicant’s willingness to take responsibility for his past substance use and criminal actions;
(ii)The fact that the Applicant has not taken illicit substances since being incarcerated;
(iii)The fact that the Applicant is highly motivated by his relationship with his wife and daughters to maintain his sobriety; and
(iv)The Applicant’s willingness to engage in residential rehabilitation if released into the community.
[18] Applicant’s SFIC paras [41]-[44].
[19] [2009] AATA 512; (2009) 110 ALD 434.
The Minister’s SFIC made the following submissions and contentions:[20]
(a)Judge Craigie in sentencing the Applicant in July 2022 referred to the Applicant being “assessed as being at a medium high risk of re-offending” applying the Level of Service Inventory revised assessment tool.[21] His Honour accepted that the Applicant suffered from a degree of depression, and addiction to ‘ice’.
(b)The sentencing judge also noted that the Applicant’s background as an unaccompanied refugee was such that, without support in the community, he was more likely to fall into behaviours that would lead him, in turn, into anti-social contacts and a lifestyle bound up with further anti-social conduct.[22]
(c)It was clear to the Court that prior attempts at rehabilitation without support “had not been particularly successful”.
(d)There is limited evidence of rehabilitation and a clear need for the Applicant to complete formal courses in respect of drug addiction and in respect of violence.
[20] Minister’s SFIC paras [31]-[35].
[21] R1/40.
[22] R1/44-5.
The Applicant’s statement dated 13 September 2023[23] included the following statements relevant to this consideration:
[23] A1/1-20.
(a)He is close to his two daughters. He will never see them again if he remains in immigration detention.
(b)If his visa remains cancelled, he will also not be able to see his wife, who presently lives in Pakistan, or his sister and her children who live in Switzerland.
(c)His criminal conduct started when he started using illicit drugs in 2016. Between 2017 and 2018 he was using heroin. In 2018 he started using ice (methylamphetamine). He moved to Sydney in 2018 and “got involved with a social circle where people took drugs and ice very often”.
(d)At that time, he had “flashbacks about things in Afghanistan”. He felt lonely and got involved in drugs. He started taking ice, marijuana, synthetic cannabis, whatever was available. He took these drugs for the several years that he committed the offences.
(e)When he thinks about these times, he feels really bad about what happened and feels bad for the person that he hurt during the reckless wounding incident. He wrote a letter to that person to apologise. He also wrote a letter to the Court apologising.
(f)He says that:[24]
[24] A1/13.
In the same situation in future I would never use violence again.

Now that I have had a period of not using illicit substances I have had

time to reflect on my previous criminal offending and I want to say sorry.
(g)At the time of his reckless wounding offence, he was really scared because his arm had been badly hurt in a violent incident in September 2019 in which his hand had been cut with a knife which damaged nerves. He is still waiting to have surgery to address that injury.
(h)His drug taking was not an excuse for the offences that he committed, but now that he has had a long period of abstaining from drugs he can see how stupid and damaging his behaviour was. This is the first time in a long time that he has not been using drugs.
(i)He was undertaking a course on drug addiction in Muswellbrook gaol which was interrupted by COVID and transfer to another gaol.
(j)He attended narcotics anonymous (NA) while in prison (once a week in Muswellbrook) and subsequently in immigration detention. Through these sessions he has learnt strategies for staying clean when released. These include staying away from triggering people and situations.
(k)He has learnt that drugs end up making people isolated from their community, and often they do the wrong thing.
(l)He also undertook a “Health Survival Tips” course which covered life skills and changing his behaviour which he found useful. He learnt how to stay away from bad influences.
(m)He worked in the gaol kitchen for a long time before he was moved to Long Bay gaol. He was happy doing this work and the officers who supervised him were happy with his work (citing the employment record from the prison authority).
(n)He did not have work opportunities in Long Bay.
(o)
The incident at Yongah Hill which resulted in the adverse incident report of 11 May 2023 was the result of his trusting a fellow detainee who said that his sister wanted to send him a parcel but that he could not receive multiple parcels. He therefore asked the Applicant if a parcel could be sent to the Applicant instead.

The Applicant agreed. The parcel contained contraband including syringes, vapes, cigarette lighters and two bottles containing unknown tablets. The Applicant has refused to identify the other detainee. The Applicant says it would be too dangerous for him to do so.
(p)He has not taken drugs while in immigration detention which has given him clarity of mind and an ability to see clearly in relation to how bad things were in the past.
(q)In detention he has not “found” any drug and alcohol courses but is keeping himself busy doing English classes, painting, going to the gym and walking.
(r)He will not offend again. He has spent 24 months in prison and has been in immigration detention since February 2023. During this time, he has reflected on what he did wrong and will not repeat that. He has not taken drugs since going into custody.
(s)He will not take drugs in the future. He will not talk to his friends with whom he associated as they introduced him to drugs. They were a “bad circle of friends”.
(t)He wants to start working again, however, he will have to go into a different type of work due to his arm injury although he does hope to have surgery so that he can go back to being a mechanic.
(u)He wants to commit more to his family and explore ways for them to come to Australia.
(v)If released he will try to get a job and will stay away from drugs and remain sober. He is keen to start working and send money to his wife and daughters. He concedes that he could do with support to stay away from illicit substances. He would like to enter a residential rehabilitation treatment facility before embarking on his new life in the community. He is presently exploring options in that regard.
(w)He would like to see a psychologist to talk to regularly. He understands that returning to abuse of drugs is a risk of which he needs to be aware. There is an Afghan community in Blacktown. He would like to be around good Afghan Hazaras who can speak Hazaraghi and who understand the pressures of having survived trauma.
The Applicant provided a supplementary statement dated 8 October 2023.[25] Relevant to this consideration, that statement was as follows:
(a)The Applicant has had the pre-release report of 24 November 2022 read to him. He explained the circumstances of the incident on 30 December 2019 in the Lithgow gaol in which another prisoner slapped the Applicant and the Applicant retaliated by punching the other prisoner. He said that he was not thinking clearly at that time and that if it happened again, he would not punch the other prisoner. He said that back in 2019 he was still using drugs.
(b)He disagrees with the comment in the pre-release report that he remained unchanged in his attitude toward the reckless wounding incident and continued to maintain that he was acting in self-defence. He said that, while he was acting in self-defence, he acknowledges that if he had not been addicted to substances, he would not have been carrying a knife and would not have inflicted the injuries that he did.
(c)He has had his police record read to him. He was ashamed by his record and said that the offences were often committed when he was affected by drugs. He accepts that he became dangerous to others on more than one occasion because he carried a knife.
(d)Since his previous statement, he had made contact with a member of the Afghan Community Association who has said that he will support the Applicant and would help him find accommodation and a job.
(e)Since his previous statement he had also contacted Odyssey House and was doing an online course which he understands will accelerate his admission into a residential rehabilitation course.
[25] A2/1-6.
The Applicant also provided a letter dated 3 October 2023 from his wife[26] in which she said:
(a)The Applicant is a very good, kind, and responsible man, and they had a very happy and loving life together.
(b)Although the Applicant did not earn much when they were together in Afghanistan, they enjoyed their life together.
(c)After three years of marriage the Applicant had to leave Afghanistan because of threats against him by the Taliban because he worked as a mechanic on government vehicles.
(d)She is now in Pakistan with their daughters, but they struggle and they have not seen the Applicant for 11 years.
(e)One of the daughters has a disability with a damaged spine which requires specialized treatment which is not available in Pakistan.
(f)Raising the children in Pakistan in the absence of their father, whom they miss, is difficult. She would like Australia to restore the Applicant’s visa so that she and the girls can join the Applicant in Australia.
[26] A2/7-8.
At the hearing the Applicant was cross-examined about his previous relapse into drug use following a period of relative abstinence while in prison between September 2019 and April 2020. His evidence was that he relapsed into drug use because at that time he had not decided to quit.[27] He said that during his most recent incarceration he had made the decision to quit taking drugs and had also received some education on that matter through the courses that he had undertaken.
[27] Transcript p 22.
The Applicant also gave evidence about what he had learnt through the courses that he had undertaken while in prison and the NA sessions that he engaged in between April 2022 and February 2023.[28] His evidence was that he had also done some online courses since being in immigration detention.
[28] Transcript p 37.
The Applicant was asked about the support that he would have in the community if he were allowed to remain in Australia:[29]
MS OPPEL:… I want to ask you some questions about that. So it’s important that you have a support system – friends and people to support you when you get out. Do you agree with that?
APPLICANT: Yes, I accept that.
MS OPPEL: So who do you have to support you?
APPLICANT: I haven’t got anybody.
[29] Transcript p 46.
The Applicant went on to say that his parole officer would check on him and make sure that he was not drinking, taking drugs and gambling. His understanding was that the parole officer would also assist in the Applicant finding employment. His evidence was that he had one friend in Brisbane, but that he had been told that he would need to start his parole in Sydney.
Counsel for the Minister also asked the Applicant about a letter that he had provided to the previous Tribunal (see [8] above) in which he had spoken about a “great foundation of friends” who would support him. The following exchange then ensued:
MS OPPEL:…In that letter you link your ability not to offend again to having that support from those friends.
APPLICANT: You know the problem is that I haven’t got any external contact. Only I have in Brisbane friends who are doing scrap work, and the other one panel beating, painting, and the other one painting.

I mean, I have some friends that have established job [sic].
Asked whether that claim was true when made in May 2021, the Applicant’s answer was:[30]
Maybe there was, yes, friends around me at that time, but now from that time to today, so many long time and also many changes, and when I will be discharged, maybe I will go out and also I met some of them and also I can make friends – establish friends here and find a good environment and good friends outside the detention [sic].
[30] Transcript p 48.
The Applicant was also asked about the sort of support that his wife could provide given that she and his daughters are in Pakistan. His evidence was:[31]
You know you ask for whether they are supporting you, I said, ‘Yes, they are supporting me,’ I mean supportive in terms of talking to me, giving me supporting good feeling. Verbally communicate with me and verbally supporting me.
[31] Ibid.
As noted above, Mr Watson-Munro provided a written report dated 5 October 2023[32] and gave oral evidence at the hearing. In his report Mr Watson-Munro describes his qualifications and experience as including:
·being a consultant psychologist;
·having lectured extensively in Australia and overseas on various aspects of criminal psychology and victimology;
·being a consultant psychologist to the Victorian Office of Corrections responsible for development and implementation of clinical treatment program for stressed prison officers;
·being a lecturer in psychology to the Victorian Police Force and the Australian Federal Police;
·from 1989-1992 being the National Chairman: Australian Psychological Society College of Forensic Psychology;
·from 1992-1993 being the Chairman - Victorian Branch, Australian Psychological Society College of Forensic Psychologists; and
·being the author of multiple papers and studies.
[32] A2/12-29.
Mr Watson-Munro made the following observations and assessments in his report:
(a)In repreparing his report, he had been provided with the documents included in exhibits A1, R1, R2 and the Applicant’s SFIC, and he had reviewed the following reports:
(i)Pre-Release Report of Ms Leah Shannon, Senior Community Corrections Officer, Long Bay Parole Unit dated 24 December 2022;
(ii)Report of Mr Chafic Awit, Psychologist, Bridges Psychology Clinic dated 9 May 2022;
(iii)Parole Order dated 12 December 2022; and
(iv)The Applicant’s criminal history.
(b)The Applicant described a complex clinical and developmental history, characterised by significant depression, anxiety, some features of Post Traumatic Stress Disorder (PTSD) and an overarching Substance Use Disorder. His symptoms relate to early childhood trauma, which occurred during his formative years in Afghanistan and aggravating factors arising from his dislocation from his country of origin, in the setting of fleeing to Australia via India, Malaysia and Indonesia.
(c)“Significantly”, the Applicant has “had minimal treatment for his underlying symptomatology, although by his account, he previously saw a psychologist in custody” and that he “has had no treatment in immigration detention and despite the progress he appears to be making, in my respectful view, this is indicated”.
(d)The Applicant “expressed a strong motivation for professional assistance should he be permitted to remain in the Australian community”
(e)The Applicant reported that his father was murdered by the Taliban when the Applicant was finishing year three at school and he was about 10 years of age at the time that the Taliban regime was overthrown in Afghanistan.
(f)The Applicant reported that prior to travelling to Australia, he witnessed many traumas, including seeing a friend killed by a suicide bomb when he was in his early adolescence.
(g)The Applicant acknowledged adjustment issues referable to his earlier life in Australia, which was compounded by the fact that he was separated from his family. He was in intermittent contact with his partner and two daughters but has had no physical interactions with them for many years. The Applicant described a fairly isolated life in Australia, which was compounded by cultural and language considerations.
(h)The Applicant advised that if he is permitted to remain in Australia, he is keen to re-enter the workforce, with a view to supporting his children, if possible, in addition to their mother and his extended family.
(i)The Applicant attributed his history of substance use to adverse peer group influences. He reported that in about 2016, he became involved with individuals who were using cannabis and abusing alcohol, in addition to other drugs, inclusive of crystal methylamphetamines (ice) and heroin. He stated that he used all of these drugs but denied using cocaine.
(j)The Applicant claimed that he had not used any illicit drugs since February 2021. He reported seeing a psychologist whilst in custody but has had no treatment in immigration detention.
(k)The Applicant reported that his offending is directly related to his drug use and in this context, he feels confident that if he can maintain a position of abstinence, he will not reoffend. He said that he is committed to sobriety and appears to have developed some insight to the dynamics surrounding his offending behaviour. He acknowledged that he has previously been in custody on two occasions and expressed remorse for his criminal behaviour.
(l)He reported heavy alcohol consumption in the past and stated that he could drink up to four litres of wine during a seven-day period, tending to consume alcohol in a group setting. He stated that he would also use ice in a group setting.
(m)It appeared to Mr Watson-Munro that the Applicant was substance using, as a consequence of his vulnerability to peer group dynamics, in addition to him self-medicating against at times, intense symptoms of depression and anxiety, low self-esteem and some features of PTSD. His symptoms relate to events which he witnessed in Afghanistan.
(n)Associated with his PTSD, he described hypervigilance to danger, a loss of trust in others, high levels of anxiety, significant depression, flashbacks, sleep disturbance and nightmares.
(o)The Applicant stated that the offending which led to his most recent incarceration was a function of him fearing for his own safety, which Mr Watson-Munro suspects may well have been a function of his unresolved symptomatology and him being triggered by the context of his interactions with the victim.
(p)An extensive body of research material speaks to the impact of unresolved PTSD on cognitive functioning and in particular, when individuals are triggered by events which they perceive as threatening, they can often act in an impulsive manner. The fact that the Applicant has been subject to three institutional misconduct charges speaks to the imperative for ongoing treatment, notwithstanding the considerable progress he appears to be making.
(q)The Applicant:
… requires treatment to address the underlying symptoms which have led to his drug use in the past and offending conduct. Given the intensity of his symptoms, the impact which they have had upon [the Applicant] regarding his mood state, general cognition and vulnerability in the past to drug use, he requires treatment to address these underlying symptoms, which in turn will reduce the likelihood of relapsing into drug use and potential offending conduct.
(r)Mr Watson-Munro reviewed the pre-release report prepared by Ms Leah Shannon and to her reference in that report to the report of Mr Chafic Awit dated 9 May 2022. Mr Watson-Munro noted that the pre-release report, consistent with his view, opined that the Applicant’s drug use was a form of self-medication and that the Applicant had “no tangible social or familial support in Sydney and that his wife and two children currently reside in Pakistan and his mother resides in Afghanistan”
(s)The author of the pre-sentence report noted that despite the Applicant’s limited insight, he had not had an opportunity to engage in offence specific intervention.
(t)Mr Watson-Munro referred to the conclusion in the report of Mr Awit to the Applicant’s PTSD as leading to drug addiction and a gambling disorder, thereby compromising the Applicant’s judgment and decision making. He agreed with Mr Awit’s assessment. Mr Awit’s report stated that the Applicant would benefit from a minimum of six months residential drug and alcohol rehabilitation, as well as psychological intervention focussing on identifying and managing high risk situations, stress reduction and problem-solving skills.
(u)Mr Watson-Munro referred to Mr Awit’s psychometric evaluation of the Applicant utilising the Depression, Anxiety Stress Scale 21 (DASS-21). The results indicate severe depression and severe anxiety in the lead up to the period of the offending, consistent with DSM-5 diagnostic criteria for PTSD and Major Depressive Disorder.

Under the heading Opinion, Mr Watson-Munro made the following observations:[33]
[33] A2 pp 22-23.
[The Applicant] has suffered unremitting symptoms of depression, anxiety, low self-esteem and features of Post Traumatic Stress Disorder. His symptoms and diagnoses have been further commented upon by Mr Chafic Awit in a report dated 9 May 2022, which was prepared ahead of sentencing proceedings, referable to these matters in July 2022. Significantly, [the Applicant] has had no treatment for his symptoms and in this context, he drifted into a pattern of substance use in about 2016.
…
… It is also apparent that he had no immediate support structure in place, in the setting of being separated from his family of origin. In this context, he was highly vulnerable to both substance use and potential criminal behaviour. There appears to be a strong nexus between these issues and his offending conduct.
…
… I have commented upon the nexus between unresolved PTSD and impulsive behaviour, coupled to an absence of consequential thinking, which [the Applicant’s] situation appears to have been further aggravated by his drug use. It is clear that he requires treatment for his symptoms, although on a more positive note, he has been substance free since about February 2021. I have noted the Treatment Plan suggested in the report of Mr Chafic Awit and I concur with this opinion. [The Applicant] is now thinking more clearly and appears to be motivated for assistance.
… [The Applicant] is fearful for his safety should he be required to return to Afghanistan, where he believes he may be subjected to ongoing persecution. This issue in turn is reinforcing his strong motivation to not reoffend in the future and to have appropriate treatment. It would appear that he has matured and certainly, in the context of being substance free, [the Applicant] has a clearer understanding of the dynamics surrounding his offending behaviour.
In terms of the issue of risk of reoffending, I note that he was evaluated by Ms Leah Shannon, Senior Community Corrections Officer, from the Department of Corrective Services, who on the basis of the LSI-R, suggested that he is in the Medium to High range risk. I would respectfully suggest that with ongoing treatment as described in the report of Mr Awit, in addition to remaining drug free, the risk posed to the Australian community will reduce. It is nonetheless apparent that [the Applicant] requires consistent and detailed psychotherapy to address his issues. I note that he has now detoxified from illicit drugs and in this context, the need for inpatient rehabilitation such as Odyssey House as suggested in the earlier material is no longer pressing. It is nonetheless apparent that the underlying causality of his drug use is yet to be addressed through treatment, which I believe could be effected in the community.
…
… Taking all factors into account, inclusive of [the Applicant’s] motivation for treatment, I believe that his risk of reoffending is now Moderate and with ongoing supervision and structure in his life, coupled to psychotherapy, this will trend towards Low.
In cross examination, Mr Watson-Munro expressed the view that:[34]
If he is detained indefinitely in immigration detention, clearly there would be a further deterioration in his mental health because of the associated despair, senseless of hopeless disregard in the future. If he’s given the opportunity to retain – return to the Australian community, clearly, the prospect of being returned to immigration detention should he reoffend I think would act as a – one of the protective factors in this case.
[34] Transcript p 69.
Mr Watson-Munro was asked about the interrelationship between the Applicant’s PTSD and his drug use, particularly ice, and the relationship of each to his violent offending.

Mr Watson-Munro’s evidence was that it was “very difficult to disentangle” in the present case. “So it’s not one or the other. I think one has led to the other, and the two of them have contributed to his current circumstances”.[35]
[35] Transcript p 70.
Asked about the treatment that the Applicant requires, and Mr Munro-Watson’s reference in his report to the Applicant “requires consistent and detailed psychotherapy to address these issues”, Mr Watson-Munro’s evidence was:
… certainly, in terms of what you say, I believe he does require consistent and fairly concerted treatment. His problems are entrenched and they’re complex.
In re-examination, it was pointed out to Mr Watson-Munro that the Applicant’s evidence was that he has not taken drugs since February 2021. Mr Watson-Munro evidence was that:[36]
… So he can be considered, from a drug perspective, to be now in a state of remission or full remission. The international guideline is two years roughly or clean time, so he’s getting to two and a half to three years now. So the idea that he would necessarily need to go into a place like Odyssey House, for example, to detoxify and commence rehabilitation I think is no longer relevant. What is relevant is the support structure, supervision in the community. So the protective factors that have been described I think are part of the treatment, although they don’t constitute one-to-one psychotherapy, support from the Afghan community, having a roof over his head, employment which provides structure for him during the day, motivation, and has a beneficial impact on self-esteem in terms of earning and progressing forward, are all integral to what we’re discussing. But in addition, as I’ve said in my report, I believe that he would benefit from a combination of cognitive behaviour therapy.
[36] Transcript p 71.
At the completion of re-examination, I asked Mr Watson-Munro whether he had made an assessment of the risk of the Applicant reoffending using any of the standard predictive tools. He confirmed that he had not. I then asked the following questions:[37]
[37] Transcript p 73.
TRIBUNAL:… your primary role, and you were brought in to suggest ways of ameliorating or treatments that could lower the risk of reoffending?
MR WATSON-MUNRO:        Yes
TRIBUNAL: … your opinion as to the – his lowering of risk is however dependent upon him undertaking the treatment which you’ve described as ‘consistent and detailed psychotherapy;
MR WATSON-MUNRO:        Yes
TRIBUNAL: … did you make any assessment as to – or form any view as to the likelihood of the Applicant’s ability to actually undertake and maintain a consistent and detailed psychotherapy course?
MR WATSON-MUNRO:        Well, it’s, with respect, always difficult to predict that type of issue. But in saying that, I would say this, that he has expressed a strong motivation for treatment; he has now detoxified; he is thinking more clearly. The consequences of his past criminal conduct are glaringly apparent to him, and I think that his motivation is genuine. That said, obviously it would be a matter for whoever takes him on in treatment to ensure that he is compliant with treatment, though I have nothing before me that suggests that he wouldn’t be at this stage. I think if he remains drug-free primarily, alcohol-free ideally as well, and has treatment, then the positive gains derived from that will become self - reinforcing and he should maintain his treatment regimen.
…
TRIBUNAL: … without treatment, do you have a view as to the risk of the applicant offending similarly to the way he offended in the past?
MR WATSON-MUNRO:        I don’t believe that it necessarily follows as a guaranteed outcome that, if he doesn’t have treatment, he would reoffend, but I would be far less comfortable about his situation in the absence of treatment. And the reason I say that is that he’s now thinking more clearly, he’s in full remission, he’s motivated. But, you know, there will be a period of adjournment [adjustment?] for him when he’s returned to, if that occurs. And, you know, I read that he has the support of the Afghan Community Centre in Blacktown and so on which is a very positive thing. So there are protection mechanisms in place, but I’m far more optimistic about his outcome in terms of forensic issue if he has treatment,…
In closing submissions, Ms Wrigley for the Applicant pointed to the positive reports in the Corrective Services case notes as to the Applicant’s behaviour in prison and immigration detention being generally positive, having no issues with other inmates and working well in the kitchen. Ms Wrigley conceded that:[38] “without the benefit of professional mental health service which has been consistent, the Applicant is not really in a position to identify himself what led to his own substance use and why he hasn’t been able to form friendships in Australia, why things went wrong for him in 2016”.
[38] Transcript at 79.
On the positive side, Ms Wrigley referred to the Applicant as being genuinely motivated to engage with support services and cited his engagement with Reverend Kelly[39] and enquiries made of Odyssey House as evidencing that intent. Ms Wrigley submitted that no negative inference should be drawn from the Applicant not providing any independent evidence of support that might be provided by the Islamic community because he has not had the opportunity to connect because of being in prison or detention, but that it would be:[40] “…reasonable to assume that a Muslim religious leader approached by any person wanting to connect with a mosque would welcome that person and help provide them with that connection”.
[39] A1 pp 53-55.
[40] Transcript at 80.
In that regard Ms Wrigley also noted the Applicant’s evidence at the hearing that indicated that he distinguished his personal relationship with God from religion and that, while he adhered to his religion, religion would not prevent him from abstaining from drugs and alcohol, but rather “I talk to my God. I ask my God to give me the strength to be able to help myself and stop those addictions.”[41]
[41] Transcript p 57.
I accept that the Applicant is remorseful for his past criminal behaviour. While it might be considered that he qualifies his acceptance of responsibility for the reckless wounding offence by claiming a degree of self-defence, I think that that caveat is understandable. The Applicant’s aggression that resulted in the reckless wounding was not pre-meditated. In my view Judge Craigie accurately characterised the Applicant’s actions as “excessive self-defence… a loss of control… in a setting whereby he had been grossly intimidated and pressed” (see [33(g)] above).
I also accept that the Applicant is sincere in his desire to avoid returning to drugs and alcohol. The issue, however, is his ability to avoid returning to drugs and alcohol. I am concerned by the lack of specific treatment that the Applicant has received for his drug and alcohol addictions. He also is recorded as having a gambling problem for which there is no evidence that he has received any treatment. I am greatly concerned by the Applicant’s unresolved, long-standing mental health issues, which lie at the root of or are a significant contributor to his offending behaviour. Mr Watson-Munro’s evidence and the reports of the other mental health practitioners who have assessed the Applicant (with whom Mr Watson-Munro agreed) point to the Applicant needing, as Mr Watson-Munro put it, “consistent and detailed psychotherapy”. Mr Awit’s report, with which Mr Watson-Munro agreed, stated that the Applicant would benefit from a minimum of six months residential drug and alcohol rehabilitation, as well as psychological intervention focussing on identifying and managing high risk situations, stress reduction and problem-solving skills.
While it may be the case that such treatment might be available, I am not satisfied that there is a reasonable likelihood of the Applicant being able to, firstly, access such treatment or, secondly, being able to adhere to the disciplines required to successfully complete such treatment. In this regard I am particularly concerned by the lack of outside support and stabilising factors that the Applicant would have if he were to be returned into the community. As he himself said, he has not got anybody (see [52] above). While I draw no adverse inference from the Applicant not calling anyone from the Islamic community to give evidence, other than the Applicant’s general statements in this regard and statements made by counsel as to the sort of supports that might be provided (see [66] above), there is no direct evidence of the support that would be provided to the Applicant.
While it may well be the case that the Applicant wants to return to work, he does not have any offers of employment or even any plan as to how to go about obtaining employment or accommodation. His reference to the parole officer or someone in the Islamic community possibly being able to help him find a job is nothing higher than a hope. There was no evidence from which I could conclude that the Applicant would be able to secure employment, particularly given the Applicant’s evidence that, as a result of the injury to the tendons in his hand, he would not be able to go back to the one job that he previously had in Australia as a motor mechanic without surgery.
Again, while I do not doubt the Applicant’s sincerity, and that of his wife, in wanting him to succeed, I do not consider the support that could be provided by the Applicant’s wife in Pakistan as being a protective influence. Similarly, while the dire consequence of the Applicant offending to his ability to remain in Australia and to bring his wife and children to Australia would be an incentive against him offending, such consequences did not prevent him offending in the past and would, in my view, be insufficient to stop him offending in the future. I also do not consider that the prospect of indefinite detention, even with the prospect of further deterioration in the Applicant’s mental health as predicted by Mr Watson-Munro (see [60] above), would be a significant protective factor.
In assessing the risk of the Applicant reoffending, I am mindful of Mr Watson-Munro’s opinions quoted in [59] above that:
It is also apparent that he had no immediate support structure in place, in the setting of being separated from his family of origin. In this context, he was highly vulnerable to both substance use and potential criminal behaviour. There appears to be a strong nexus between these issues and his offending conduct.
…
I have commented upon the nexus between unresolved PTSD and impulsive behaviour, coupled to an absence of consequential thinking, which [the Applicant’s] situation appears to have been further aggravated by his drug use. It is clear that he requires treatment for his symptoms.
…
In terms of the issue of risk of reoffending, I note that he was evaluated by Ms Leah Shannon, Senior Community Corrections Officer, from the Department of Corrective Services, who on the basis of the LSI-R, suggested that he is in the Medium to High range risk. I would respectfully suggest that with ongoing treatment as described in the report of Mr Awit, in addition to remaining drug free, the risk posed to the Australian community will reduce. It is nonetheless apparent that [the Applicant] requires consistent and detailed psychotherapy to address his issues.
It is, in the present case, appropriate for me to assess the Applicant’s risk of reoffending based on the Applicant’s current circumstances, not on the basis of what risk he might pose if he were to receive the sort of treatment recommended by Mr Awit and Mr Watson-Munro after release into the community. It is not disputed that the Applicant’s mental health issues, in particular his PTSD, remain unresolved. The most recent professional assessment, that of Mr Watson-Munro quoted at [73] above, referred to the Department of Corrective Services assessment of the Applicant as being a medium high risk of reoffending and that that level of risk would “reduce” if the Applicant were to receive the “treatment as described in the report of Mr Awit, in addition to remaining drug free”. Unfortunately, the Applicant has not received that treatment and I do not consider that the limited courses that the Applicant has been able to undertake while in prison and immigration detention would be an equivalent. I am also concerned that if the Applicant were to be released into the community he would, in effect, have no more supports and stabilising influences than he did when he offended. While it is to his credit that he has remained drug free while he has been in prison and immigration detention, it is fair to assume that his access to drugs in the community will be greater that it was in prison and immigration detention.[42]
[42] See XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 783 at [47]-[52].
Based on the Department of Corrective Services assessment and the assessments of

Mr Watson-Munro and Mr Awit as to the Applicant’s unresolved and largely untreated addiction and mental health issues, I assess the Applicant’s risk of reoffending as still being as assessed by the Department of Corrective Services, namely, medium high.
The harm that would be caused should the Applicant engage in the offending behaviour that he has in the past is serious (see [44] above). This, coupled with my assessment of the risk of the Applicant re-offending being medium high, causes me to consider that this first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Both parties contended that this consideration is not relevant in the present case. I agree. There is no evidence that the Applicant has engaged in conduct which would constitute family violence as that term is defined in Direction 99.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(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) 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.
(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’s SFIC made no submission on this consideration. In closing, Ms Wrigley submitted:[43]
I now want to go to the strength, nature and duration of ties to Australia. During the evidence, the applicant conceded that he has no friends in Australia currently, and that he only worked in Australia for a limited period of time between being granted work rights and being incarcerated. But the tie that the applicant has to Australia, which is significant, is that Australia has granted him protection. Australia has made a protection finding to him and granted him a safe country where he can live without fear of persecution.
Since coming to Australia, the applicant has not been able to bring his family here to be with him for over 10 years. The law in this regard has now changed, permitting access to permanent residency for the applicant and permitting sponsorship of his wife and daughters.
[43] Transcript pp 82-83.

I accept that the almost inevitable consequence of the Applicant’s visa remaining cancelled would be his indefinite detention, and that the likely effect of that detention would be a further deterioration of the Applicant’s mental health. This, coupled with the expert opinion that the Applicant’s offending was, in part at least, caused or contributed to by the Applicant’s mental health issues (matters beyond his control), would reduce the weight that the community would give to the expectation that the Applicant’s visa should remain cancelled.
I do not accept that the contention that the community’s expectation that the Applicant’s visa should remain cancelled would be reduced by the fact that the Applicant has drug and alcohol abuse issues. These are long-standing and were largely unaddressed by the Applicant. They are at the core of the Applicant’s violent and antisocial behaviour which is why the Applicant is a threat to the Australian community. I do not accept that a factor which causes the Applicant to be a threat to the community would also be a factor which would lower the community’s expectation as to the Applicant’s visa remaining cancelled.
In relation to the sentences imposed by the courts, the roles played by the courts and the sentences imposed by the courts are different to the role that visa cancellation has. As the Applicant noted, the consideration of whether a non-citizen’s visa should be cancelled or remain cancelled, is inextricably linked to the primary consideration of the protection of the community. The cancellation of a visa is not to punish the non-citizen, but to protect the community. In that regard the Applicant’s submissions are premised on the Applicant being a low risk to the community. I do not accept that that is the case. For reasons set out in the consideration of the first primary consideration, I find the Applicant to be a moderate high risk of reoffending with the potential harm to the community, or a member of the community, serious.
This consideration of the expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa and, taking into account the factors going to weight set out in [99]-[104], I consider that this consideration should be given moderate weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of the decision (para 9.1)
Paragraph 9.1 of Direction 99 provides:
(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.
(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 Applicant’s SFIC made the following contentions and submissions:[57]
(a)A negative decision would prevent the Applicant from making a further application for a protection visa while he is still in the migration zone (s 48A of the Act).
(b)Application for a visa other than a protection visa would be subject to s 501E of the Act. This will mean that, without leaving the migration zone, the Applicant will not be able to apply for any visa other than a Bridging R (Class WR) which he could only apply for in response to an invitation.
(c)Because of the protection finding the Applicant will not be removed to Afghanistan. Instead, the Applicant will be subject to indefinite immigration detention. He will remain in detention until he can be removed to a country other than Afghanistan, or unless the Minister intervenes to grant the Applicant a visa under s 195A or to make a residence determination under s 197AB of the Act in his favour.
(d)The prospects of finding another country willing to receive the Applicant are poor and three is no evidence that the Minister will consider exercising the personal, non-compellable powers in ss 195AA or 197AB in relation to the Applicant.
(e)Indefinite detention will have a physical and psychological impact on the Applicant who has made demonstrable progress towards his rehabilitation.
(f)There is ample evidence and research that speaks to the disastrous effects of indefinite detention on a person’s mental health.
(g)Whilst in the community, the Applicant has been making use of a variety of services in an effort to take care of his health and well-being. In particular, the Applicant has utilised STARTTS[58] services in managing his mental health and attends the RPA Clinic for the management of his drug addiction.[59]
(h)Indefinite detention of the Applicant would place Australia in breach of international law. Indefinite detention is incompatible with Article 9 of the International Covenant on civil and Political Rights (the ICCPR).
[57] Applicant’s SFIC paras [63]-[70].
[58] Service for the Treatment and Rehabilitation of Torture and Trauma Survivors
[59] There is no evidence or reference in any of the evidence to the Applicant having utilised this service.
In closing Ms Wrigley also identified a further legal consequence of an adverse decision as being that the Applicant would not be in a position to sponsor his wife or daughters to come to Australia as he would not hold a permanent residency visa as required to sponsor his immediate family to join him.[60]
[60] Transcript at 83.
The Minister’s SFIC contended as follows:[61]
(a)The Applicant’s SHEV would have ceased in October 2022 but for the cancellation decision. Consequently, this proceeding would primarily affect whether the Applicant is subject to the bars on further visa applications found in ss 48A(1B) and 501E of the Migration Act as well as his ability to satisfy Special Return Criteria 5001.
(b)The Applicant would separately be subject to the s 46A bar on further visa application as he no longer holds the SHEV.
(c)A protection finding has been made in respect of the Applicant during the course of the SHEV application.
(d)Para 9.1.1(2) of Direction 99 makes plain that the Applicant will be required to remain in immigration detention unless and until he is granted another visa, or he can be removed to a third country. Consequently, he is likely to face “indefinite”/prolonged detention without a chronologically fixed endpoint.[62]
(e)The Minister accepts that this consideration “is likely to attract significant weight in [the Applicant’s] favour”.
[61] Minister’s SFIC paras [46]-[49].
[62] Citing ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [11].
As noted by the Minister, the Applicant’s SHEV would have ceased in October 2022. Accordingly, a decision to set aside the reviewable decision and substitute a decision to revoke the cancellation of the Applicant’s visa would not result in the Applicant being released from immigration detention. He would still have no visa. What revocation of the cancellation would do, however, would be to enable the Applicant, subject to the lifting of statutory bars, to make an application for a resolution of status visa (or similar) which could potentially provide a pathway to permanent residency and, subject to the Applicant satisfying character criteria, assist in an application to sponsor his wife and children to come to Australia.
The consequences of affirming the reviewable decision are those identified by the Applicant as set out in in [108] and [109] above. As noted at [60] above, Mr Watson-Munro’s evidence was that indefinite detention would likely cause a “further deterioration in [the Applicant’s] mental health”. That view is supported by the Applicant’s own evidence and the studies referred to in the Applicant’s SFIC.
As the Minister in effect conceded, this consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 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.
On one view, this consideration is not relevant given that the decision that I make will have no impact on whether the Applicant is returned to Afghanistan. That was the view taken by the Minister.[63] I note, however, that the Applicant made submissions relevant to this consideration.
[63] Minister’s SFIC para 50.
Given that para 9.2 is couched in terms of “if” the non-citizen is removed from Australia to their home country, although that will not occur unless the circumstances giving rise to the protection obligation change, the consideration is still potentially relevant.
The Applicant’s SFIC contended that the Applicant would face substantial cultural barriers due to the length of time that he has spent in Australia and, because he is an Hazara, he will face the real risk of persecution. The Applicant referred to DFAT country information which indicates that the situation for Hazaras is “unequivocally dire”, according to the Applicant. That assessment is supported by the DFAT Country Information Report.
The Applicant further contended that, having been found to be owed protection, return to Afghanistan would be severely destabilising and re-traumatising and it is not clear whether the Applicant would be able to access a similar drug replacement therapy program or other kind or treatment plan, which may expose him to risks of severe withdrawal symptoms and eventual relapse. I agree that they are all consequences and hardships that the Applicant would be likely to face if he were returned to Afghanistan.
The Applicant does concede, however, that “because the practical effect of s 197C(3) in this case is that the continued cancellation of the Applicant’s visa will not result in his removal to Afghanistan, this factor should, at worst, be given neutral weight in the Tribunal’s consideration”.[64]
[64] Applicant’s SFIC para 75.
I agree with the Applicant’s contention that this consideration should be given neutral weight.
Both parties contended that the considerations of impact on victims and impact on Australian business interests are not relevant in this case. There was no evidence relevant to either of those considerations and I agree that in the circumstances these considerations are not relevant.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [22] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [18] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[65] and the Full Court judgment in Minister for Home Affairs v HSKJ.[66] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[67] for analysis of those cases.
[65] [2018] FCA 594.
[66] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[67] [2023] AATA 755 at [182]- [183].
More recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[68] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[68] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. I now compare and balance the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
Following the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the Applicant’s visa.
The second primary consideration, family violence committed by the Applicant, is not relevant in this case.
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, does not weigh in favour of revoking the cancellation of the Applicant’s visa.
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, is not relevant.
I find that the fifth primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the Applicant’s visa and that moderate weight should be given to it.
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
The remaining “other considerations” are not relevant or are neutral.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [22] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations against revoking the decision to cancel the Applicant’s visa, in particular the first primary consideration, the protection of the Australian community, and the fifth primary consideration, the expectations of the Australian community, outweigh the one “other” consideration weighing in favour of the revocation of the cancellation of the Applicant’s visa, namely the legal consequences of the decision. Accordingly, I find that there is not another reason why the original decision should be revoked.
DECISION

The decision of the delegate of the Minister dated 16 August 2023 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise (Temporary) visa is affirmed.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

137.

...........[Sgd].........................................................
Associate
Dated: 30 October 2023

Date of hearing:

12-13 October 2023

Solicitors for the Applicant:

Ms K Wrigley, Refugee Advice & Casework Service (Aust) Inc.

Solicitors for the Respondent:

Ms C Oppel, Australian Government Solicitor

Court	Date Of Conviction	Offence	Result
Parramatta District Court	01/07/2022	Reckless wounding	IMPRISONMENT: 3 YEARS AND 3 MONTHS COMMENCING 22/02/2021 CONCLUDING 21/05/2024 NON-PAROLE PERIOD: 2 YEARS
Fairfield Local Court	24/02/2021	Shoplifting value <=$2000-T2 Enter enclosed land not presc premises w/o lawful excuse	FINE: $800 S10A CONVICTION WITH NO OTHER PENALTY
Bankstown Local Court	18/02/2021	Attempt stalk/intimidate intend fear of harm (personal)-T2 Shoplifting-T2 Possess Schedule 9 substance Fail to appear in accordance with bail acknowledgment x 3	S10A CONVICTION WITH NO OTHER PENALTY COMMUNITY CORRECTION ORDER: 12 MONTHS COMMENCING 18/02/2021 CONCLUDING 17/02/2022
Fairfield Local Court	03/08/2020	Attempt stalk/intimidate intend fear of harm (personal)-T2	COMMUNITY CORRECTION ORDER: 12 MONTHS COMMENCING 18/02/2021 CONCLUDING 17/02/2022
Liverpool Local Court	12/06/2019	Behave in offensive manner in/near public place/school Resist or hinder police officer in the execution of duty	FINE: $400 FINE: $500
Burwood Local Court	21/06/2018	Common assault – T2	FINE: $1,000

Date of hearing:	12-13 October 2023
Solicitors for the Applicant:	Ms K Wrigley, Refugee Advice & Casework Service (Aust) Inc.
Solicitors for the Respondent:	Ms C Oppel, Australian Government Solicitor