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

[2022] AATA 4137

QCRG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4137 (6 December 2022)

Division:GENERAL DIVISION

File Number(s):      2022/7755

Re:QCRG

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member K Raif

Date:6 December 2022

Place:Sydney

The decision under review is set aside and, in substitution, the discretion to refuse the application for a Protection (Class XA) visa under section 501 of the Migration Act 1958 (Cth) is not exercised.

..............................[SGD]..........................................

Senior Member K Raif

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Protection (Class XA) visa – visa cancelled under s 501(1) of the Migration Act 1958 (Cth) – applicant did not pass character test – substantial criminal record – aggravated sexual intercourse – indecent assault – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – nature and seriousness of applicant’s conduct – seriousness of offending and future risk – expectations of the Australian community – international non-refoulement obligations – other considerations – extent of impediments if removed – impact on victims – links to the Australian community – strength, nature and duration of ties to Australia – other factors – possibility of indefinite detention – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) s 501

SECONDARY MATERIALS

Ministerial Direction No. 90 – Direction under section 499 – Visa refusal under section 501

REASONS FOR DECISION

Senior Member K Raif

6 December 2022

1. This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent) made on 13 September 2022 to refuse to grant a Protection (Class XA) visa.

2. The applicant, QCRG, is a national of Liberia. He arrived in Australia in January 2003 as a holder of a Class XB Global Special Humanitarian visa. In April 2007, the applicant was convicted in the District Court of New South Wales (NSW) for the offences described below and received a custodial sentence exceeding 12 months.

3. In October 2014, the applicant’s Class XB visa was cancelled by the respondent under section 501(2) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he had been sentenced to a term of imprisonment of 12 months or more. The applicant made an application for judicial review of that decision, which was dismissed.[1].

   [1] CFT15 v Minister for Immigration and Border Protection [2016] FCA 283.

4. In September 2018, the applicant made an application for a Protection (Class XA) visa. In September 2020, the applicant was issued with the Notice of Intention to Consider Refusal (the Notice) of his visa under section 501(1) of the Act. The applicant provided his response to the Notice, and in September 2022 the delegate decided to refuse to grant the visa under section 501(1) of the Act. The delegate found that the applicant did not pass the character test and exercised their discretion to refuse to grant the Protection (Class XA) visa.

5. In September 2022, the applicant made an application for review of the delegate’s decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

6. The issues before the Tribunal are:

   (a)whether the applicant passes the character test as required by section 501 of the Act and if not;

   (b)whether the Tribunal should exercise its discretion to refuse to grant the applicant the visa.

   RELEVANT LEGISLATION AND POLICY

7. Pursuant to section 501(1) of the Act, the Tribunal acting as the decision maker may affirm a decision to refuse the grant of a visa if it is satisfied that the applicant does not pass the character test.

8. The character test is set out at section 501(6) of the Act, and relevantly prescribes at section 501(6)(a) that a person will not pass the character test if a person has a substantial criminal record. Section 501(7)(c) defines a substantial criminal record as if a person has been sentenced to a term of imprisonment of 12 months or more.

9. Should the applicant not satisfy the character test, the discretion to refuse the visa under section 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Ministerial Direction No. 90 – Visa Refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (Direction No. 90). Direction No. 90 is binding on decision-makers, including this Tribunal, in performing its functions, or exercising powers under section 501 of the Act.

10. Direction No. 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at clause 5.2(2) of Direction No. 90 states that:

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

11. The primary considerations set out in clause 8 of Part 2 of Direction No. 90 are:

    1.protection of the Australian community from criminal or other serious conduct;

    2.whether the conduct engaged in constituted family violence;

    3.the best interests of minor children in Australia; and

    4.expectations of the Australian community.

12. The other considerations set out in clause 9(1) of Direction No. 90 are:

    1.international non-refoulement obligations;

    2.extent of impediments if removed;

    3.impact on victims;

    4.links to the Australian community including:

    a.strength, nature and duration of ties to Australia; and

    b.impact on Australian business interests.

13. Decision-makers should ‘generally’ give greater weight to the primary considerations than the other considerations. Further, one primary consideration may outweigh other primary considerations: clause 7(2) and (3) of Direction No. 90.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

14. The Tribunal has been provided with the report of the Australian Criminal Intelligence Commission which indicates that the applicant was convicted of the following offences:

    -     Sexual intercourse without consent – 11 years of imprisonment

    -     Sexual intercourse without consent – 10 years of imprisonment

    -     Sexual intercourse without consent – 10 years of imprisonment

    -     Sexual assault without consent – 10 years of imprisonment

    -     Assault with act of indecency – 3 years of imprisonment

15. The applicant had appealed these convictions, however his appeal was dismissed.

16. The applicant concedes that he does not pass the character test. Having regard to the above evidence, the Tribunal finds that the applicant was convicted of offences for which he was sentenced to terms of imprisonment of 12 months or more. As such, the Tribunal finds that this constitutes a ‘substantial criminal record’ as defined in section 501(7)(c) and that the Applicant does not pass the character test.

    EXERCISE OF DISCRETION

17. The applicant submits, essentially, that his conduct was due to alcohol use and that he no longer consumes alcohol. The applicant stated that he is remorseful for his conduct, is reformed and had already paid the price for his conduct. Despite the expression of remorse, he also denies that he had committed the offence. The applicant stated that he is ready to enter and contribute to the Australian community. He stated that he made a mistake and is ‘pleading for the second chance’. The applicant stated that his entire family are Australian citizens, and he cannot return to his home country.

18. The respondent submits that there remains a risk of the applicant reoffending and, given the nature of the offending and the risk to the community if the applicant was to reoffend, the discretion must be exercised against the applicant. The respondent submits that the protection and expectation of the community are considerations that outweigh other considerations in favour of the applicant, and that the decision under review should be affirmed. 

19. The Tribunal’s reasons with regard to the considerations in Direction No. 90 are set out below.

    Primary considerations

    Protection of the Australian community

20. Sub-clause 8.1 of Direction No. 90 provides as follows:

    Protection of the Australian community

    1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….

    2Decision-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.

21. The Tribunal has considered the nature and seriousness of the applicant’s conduct.

22. The Tribunal has had regard to the remarks of Conlon J in the District Court of NSW (dealing with the convictions appeal). His Honour refers to the evidence of the victim, EH, at the trial. She reported that on the evening of 30 January 2004, EH attended licensed premises with friends where she consumed alcohol. On her way home, she observed the applicant, who followed her and attempted to start a conversation. The applicant walked with EH to her friend’s home and asked her to go to a hotel, which she refused. When they reached the friend’s home the applicant had grabbed EH around her waist, pulled her towards him and kissed her on the open mouth with his tongue, to which she did not respond. He gripped the victim (she described it as being forceful) and walked her to a nearby house where he roughly kissed her. It is stated that the applicant then put his hand down the victim’s pants and started to roughly finger her vagina. This was said to constitute the offence of digital penetration.

23. It is stated that the applicant then pulled down EH’s pants and underpants, turned her around, pulled his own pants down and put his penis into her anus. EH described that he used ‘extreme force’ and that she felt excruciating pain. This continued for about five minutes.

24. It is reported that after the anal intercourse, the applicant put EH down on the ground and put his penis into her vagina. He was grabbing her nipple roughly. He then put his hand in to her vagina and started fingering her with more than one finger. It is stated that throughout these events, EH told the applicant that he was hurting her. It is stated that when EH was able to run to her friend’s house, the applicant followed her with her thongs and asked her for her phone number.

25. It is reported that EH was examined by a doctor whose evidence was that the victim’s pants and trousers were blood stained, there were grazes/lacerations on the nipple, there was dried blood on her inner thigh, bruising to her lip, and she had a swollen labia minora. The judge considered the seriousness of the offences and noted that there was a forceful, violent attack on the victim, causing her to be frightened. The judge found the offences to be within the mid-range of objective seriousness. His Honour stated that the act of anal intercourse was a particularly degrading act carried with the use of extreme force and caused the victim ‘excruciating pain’. That offence was described as falling above the mid-range of objective seriousness.

26. Paragraph 8.1.1 states that violent and/or sexual crimes and crimes of a violent nature against women are viewed very seriously by the Australian government and community. In this case, the offence was violent, sexual in nature and against a woman. Despite the applicant’s repeated denials of his committal of the offence, the Tribunal finds that the fact that he was convicted can be taken as evidence that he had committed the offence.  As the offence involved a sexual crime and a violent crime against a woman, the Tribunal considers the offending to be very serious. That is reflected by the lengthy custodial sentence given to the applicant.

27. The Tribunal has considered the risk to the community, should the applicant reoffend. The Tribunal is of the view that sexual offending against women, including violent sexual offending, implies that should the applicant reoffend, the adverse impact of such offending would be significant.

28. In his sentencing remarks, Conlon J states that the applicant denied that he had committed the offence and sought to offer an alibi for the time in question. It is stated that the applicant gave evidence that he was at home sleeping on the night of the offence. He denied that he drank alcohol that night and his wife also gave evidence that at the time, the applicant did not go out frequently and when he did, he did not return late.

29. His Honour refers to the Pre-Sentence report prepared by MW. It indicated that the applicant repeatedly explained that he was not guilty, denied that he was there and stated that he was at home with his wife who was sick at the time. The applicant claimed he was ‘set up’. It is also noted that the applicant presented a report by SA dated February 2007, which refers to the applicant suffering from anxiety, sleep disturbance, depressed mood, and nightmares consistent with prior serious psychological or traumatic experiences, palpitations, and shortness of breath. SA suggested that there were symptoms of PTSD, and further noted that the applicant felt ‘aggrieved’ about the conviction and continued to deny the offence. In a subsequent report, SA refers to the history of significant psychological trauma when the applicant lived in Africa, leading to his PTSD, anxiety and depressive symptoms.

30. In his own statement which appears to have been prepared in 2014, the applicant refers to witnessing the murder of his family, which he stated led to his depression, and referred to being in jail for a crime he did not commit. The applicant stated that the separation from his family and the injustice of his imprisonment have led to his mental illness and nightmares.

31. The Tribunal has had regard to the Pre-Sentence report prepared in November 2006 by MW. MW stated that the applicant denied any problems with alcohol and drugs and that his alcohol consumption was moderate. It is stated that when questioned about alcohol consumption, the applicant was reported to have been adamant that he did not commit the offence. It is stated that he appeared to ignore, or failed to understand the severity of the offence and seemed to be at pains to assure the author of his innocence. He repeatedly stated he was not guilty, denied he was there and claimed he was with his wife at the time.  MW stated that the applicant described having a ‘vision about his innocence’, and that he may need psychiatric intervention. It is stated that the applicant was focused on his own predicament and showed no appreciation or insight into the trauma experienced by the victim.

32. In his submission to the delegate dated 12 May 2014, the applicant referred to his family life in Australia and to ‘a very unfortunate series of incidents’ which resulted in his incarceration. The applicant described the hardship that he had experienced in jail and that was caused to his family. To describe a violent rape against another person as an ‘unfortunate series of incidents’ that caused inconvenience to him and his family demonstrates, in the Tribunal’s view, the applicant’s complete lack of insight into his behaviour and its impact.

33. The applicant provided evidence to the Tribunal that he had made an application to join a custody-based Sex Offender Program but was not accepted into one. There is subsequent evidence that was provided to the delegate showing that he had completed an anger management course, a Getting SMART program and had participated in a sex offenders program. The applicant’s academic transcripts and Certificates of attainment for several TAFE courses are also before the Tribunal. There is also a statement from GEO Group indicating that the applicant had completed a SOP (PREP) Pre-Treatment program while in the correctional centre.

34. In his submission to the delegate dated 12 May 2014, the applicant stated that there was ‘absolutely no chance’ of his reoffending as he had eradicated his dependency issues, his employment prospects were high, and he was fit and healthy. He stated that he has learned his lesson. In oral evidence to the Tribunal, the applicant could not explain what dependency issues he was referring to and stated that he wanted to get out of prison where he had spent a long time. He noted that he had been identified as being a low risk of reoffending by the parole officer, and that throughout his incarceration he had maintained his Christian faith and values. The Tribunal finds the applicant’s claims to be of limited value, given his repeated denials in oral evidence that he had convicted the offence, his references to poor mental health in jail and his inability to explain what dependency issues he was referring to. The applicant’s oral evidence suggests that his written statements were prepared to be released from detention, rather than as a genuine expression of remorse.

35. The supporting statement from a Settlement Services Worker dated 13 May 2014 refers to the applicant doing everything for his family, being a patient and kind man, a good father and husband, and an active member of the community. It is not apparent whether the author was aware of the applicant’s conviction when preparing that statement or the circumstances of the offending, and whether these circumstances would have altered their views. There are other character references from members of the community and Liberian community organisations. The applicant is referred to as a respected and serious community member.

36. There are also statements from the applicant’s children and his partner in support of him, and a statement from a coordinator of Chaplaincy Department of Junee Correctional Centre. It is stated that the applicant had attended a 40-hour program and his involvement in the regular program. It is stated that the applicant had actively participated in prison fellowship and had shown remarkable maturity and growth in his spiritual journey. The author refers to the applicant’s positive impact on his peers and the opportunity for his positive contribution to the community upon release. The Tribunal acknowledges that evidence.

37. In oral evidence at the hearing before the Tribunal, the applicant repeatedly stated that he had made a mistake, had learned from it and the same conduct would never happen again. He stated that he did not drink anymore, referred to the beatings and hardship he experienced while in detention, and  that he is seeking another chance. However, the Tribunal considers that the applicant also repeatedly stated he had no recollection of what happened on the night in question as he was drunk, that there was no DNA evidence against him, and that he was put in prison because he was black. The applicant told the Tribunal that he had done nothing wrong, that ‘it was not him’, and suggested that his admission of offending was made because ‘he needs his freedom’. The applicant explained to the Tribunal that his expression of remorse and admission of guilt were made to ‘make everyone happy’ and to be released from prison.

38. The Tribunal has formed the view that the applicant has no insight into his behaviour and its impact on the victim. The Tribunal does not accept that the applicant is genuinely remorseful for his conduct when he claims he had not committed the offence. The Tribunal finds that his past expression of remorse is opportunistic and not genuine because he believed that such expression would increase the likelihood of his release from detention. The respondent submits that a lack of remorse and insight indicates that the applicant is at a higher risk of re-offending but the Tribunal does not consider that is necessarily so.

1. The Tribunal has also considered the Pre-Release report prepared in July 2014. It refers to the applicant’s limited contact with his wife and children in the most recent period. With respect to offending, it is stated that the applicant experiences unresolved issues related to his sexual offending behaviour. It is stated that a STATIC99 was administered in December 2013, and that the applicant was presented as a low risk of committing further offences of a similar nature. However, it states that the applicant denied the offending. It is noted that in consultation with others, the applicant had made statements that ‘strongly indicated admissions of guilt’ and that the use of alcohol at the time was a contributing factor towards the commission of the offence. The applicant was described as compliant and cooperative during his detention, and that he would be suitable for a low/medium level of intervention by Corrective Services, commensurate with the risk assessment and identified criminogenic needs.

2. The Tribunal has considered a report from KLN dated 7 November 2019. KLN states that the applicant was assessed as being genuinely fearful of persecution upon return to Liberia, was assessed as satisfying the criteria for PTSD in relation to experiencing significant trauma in Liberia and that it was likely that his symptoms had been exacerbated by stress relating to immigration matters and time spent in detention. It is also stated that the applicant was assessed as meeting the criteria for major depressive disorder and at high risk of self-harm if he was to face deportation. KLN stated that his mental health may deteriorate if he returned to Liberia due to unavailability of appropriate mental and physical healthcare in that country and that there was a low risk of sexual recidivism. The respondent submits that KLN’s report is to be given little or no weight because it is based on the assumption that the applicant may have been incorrectly convicted, which is not the proper basis. The Tribunal acknowledges that statement by KLN, but does not accept that the entirety of the report, including KLN’s professional opinion, is to be given little or no weight due to the remark about the applicant’s possible innocence.

3. The Tribunal gives weight to the following factors. The offending conduct involved one occurrence (despite multiple charges and convictions, these stem from one incident). There is nothing to indicate that the applicant had committed any other offences or had otherwise displayed sexual, other violent behaviour or engaged in any other anti-social conduct since his arrival in Australia. It is significant that the Pre-Release assessment and the more recent assessment by KLN both indicate that there is a low risk of sexual reoffending. The Tribunal also acknowledges the applicant’s evidence that he had spent considerable time in detention and to the beatings and hardship he reported to have experienced while in detention. The Tribunal considers that the prospect of further imprisonment would act as a significant deterrent to the applicant reoffending.

4. The Tribunal acknowledges the submission from the respondent that the applicant has no insight into his behaviour, denies the offending and would say anything that he believes would have him released from detention. The respondent also submits that there are no prospective factors such as stable employment and support from the community. In the Tribunal’s view, that is not entirely accurate because the applicant has some support from the community. The Tribunal acknowledges the evidence of Mr Jeru, who has undertaken to ‘stand by’ the applicant, to provide him with ongoing support and help with his employment.

5. In all the circumstances, having particular regard to the professional opinions in the above reports, the Tribunal has formed the view that the applicant is at low risk of sexual recidivism.

6. Given the serious nature of the offence, the Tribunal finds that this consideration weighs against the applicant. However, given the applicant’s low risk of reoffending, only weighs marginally against him.

   Best interests of minor children

7. The applicant has five children born in 1993, 1997, 1998, 1999 and 2003. The Tribunal is mindful that all these children are now over the age of 18 years. They provided written statements supporting the applicant. In oral evidence, the applicant spoke about his contact with the children and their present circumstances, and the Tribunal accepts that the applicant maintains some contact with them. Before the Tribunal, there is information about one of the applicant’s children, F, who was in foster care. The applicant’s evidence is that much of the information about F is incorrect. In particular, the applicant told the Tribunal that he does have a relationship with his children, including F and that (contrary to the evidence of support providers), F is not fearful of him but is looking forward to the applicant’s release from detention. Whatever F’s present circumstances are, F is now over the age of 18 years.

8. The applicant has a minor grandchild, however he presented with very little evidence to the Tribunal about his interactions her. On the limited evidence before it, the Tribunal is not satisfied the applicant has a meaningful relationship with this child and does not consider that the best interests of the child would be adversely affected if the discretion to refuse the application is exercised.  

9. The Tribunal considers this consideration to be neutral.

   Whether the conduct engaged in constituted family violence

10. There is no evidence before the Tribunal that the applicant had engaged in family violence. The Tribunal finds that this consideration is neutral.

    Expectations of the Australian community

11. Clause 8.4 of Direction No. 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:

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

12. In considering the expectations of the Australian community, the Tribunal places some weight on the nature of the offence. In the Tribunal’s view, the community would find an offence involving sexual violence against a woman extremely serious. The applicant’s persistent denial of his offending over many years may also be suggestive of a lack of empathy towards the victim (although the Tribunal is mindful of the comments made by KLN in her report). The Tribunal is of the view that the applicant’s persistent denial of the offending, in the circumstances of his conviction (and his own admission that he was too drunk to recall what happened on the day), indicates a lack of remorse and would be contrary to the expectations of the community.

13. The Tribunal accepts that a considerable degree of hardship may be caused to the applicant if he is to be removed from Australia or if he is to remain in detention for a lengthy or indefinite period if the discretion to refuse the application is exercised. The Australian community may view such matters in favour of not exercising the discretion. However, the Tribunal is of the view that the Australian community would also give due regard to the nature of the offending. The Tribunal has formed the view that in the circumstances of this case, the community would expect that the applicant’s conduct would result in him losing the opportunity to remain in Australia.

14. The Tribunal finds that, having regard to the totality of the applicant’s circumstances, the Australian community would support exercising the discretion to refuse the application for the visa. That is, the expectation of the community weighs heavily against the applicant having a visa.

    Other Considerations

    International non-refoulement obligations

15. The applicant refers to his family’s involvement in the politics of his home country. Several statements had been provided by members of the community supporting the applicant’s claims.

16. The Tribunal acknowledges that the present application is in relation to a refusal to grant a Protection (Class XA) visa. The primary decision record indicates that protection findings had been made in relation to the applicant and have not been revoked. The effect of section 197C of the Act is that the applicant cannot be removed from Australia involuntarily.

17. In these circumstances, exercising discretion against the applicant may result in lengthy or even indefinite detention. However, as the applicant cannot be removed from Australia, the Tribunal finds that Australia’s non-refoulement obligations would not be breached if the discretion is exercised. The Tribunal considers this consideration to be neutral.

    Extent of impediments if removed

18. The Tribunal is mindful that due to the protection findings in relation to the applicant, he cannot be removed involuntarily and is unlikely to be removed from Australia unless he is resettled in a safe third country. Nevertheless, the Tribunal has considered the extent of impediment if he is removed.

19. The applicant refers to his poor mental health although there is no clear evidence before the Tribunal that the applicant’s health issues would affect his ability to seek employment overseas. In his evidence to the delegate, the applicant stated that if he returned to his home country, he would be imprisoned, subject to beatings and would be killed by beatings or disease. He stated that he would not be accepted to live among people in Liberia, and would not be able  find employment to support himself and would ‘die from suffering due to [lack] of financial and other supports to sustain myself’. He referred to his mental health as an impediment to his return to his home country.

20. The applicant presented no satisfactory evidence to support his assertions. Thus, there is little before the Tribunal to support his claims that he would be imprisoned upon return to his home country or, if he is not imprisoned, that he could not find employment to support himself. There is little evidence to indicate that the applicant had sought employment in Liberia and was denied such employment. Nevertheless, the Tribunal accepts that, due to the length of his absence from his home country and the circumstances of his departure, the applicant is unlikely to have any support available to him. The Tribunal also acknowledges that the applicant’s mental health may affect his ability to resettle in Liberia.

21. The applicant’s evidence to the Tribunal is that his entire family, including his wife, children and one of his siblings, live in Australia and are Australian citizens. The Tribunal accepts that evidence and that the applicant has not lived in his home country for many years, may no longer have any links there and is unlikely to have any support. The Tribunal accepts that there may be strong impediments if the applicant is removed from Australia.

22. There is also before the Tribunal a letter of support from NSW Services for the Treatment and Rehabilitation of Torture and Trauma Survivors, which indicates that the applicant’s spouse is supported by the Mental Health – Community Living Support for Refugees program. The applicant’s partner has expressed belief that if the applicant is released into the community, he ‘will be fine through the glory of God’. The Tribunal finds that this consideration weighs in favour of the applicant. 

    Impact on victims

23. The Tribunal acknowledges the information contained in the sentencing remarks in relation to the impact of the crime upon the victim and the victim’s statement given to the police around the time of the offending.  The statement shows that the offence has had significant detrimental effect on the victim and her well-being. In her statement the victim refers to her ongoing fear and hesitation.

    Links to the Australian community including the strength, nature and duration of ties to Australia and impact on Australian business interests

24. The applicant’s children, grandchild, partner and sister live in Australia and are Australian citizens. The applicant provided a statement to the delegate that his relationship with his wife had irretrievably broken down and in another statement, he also referred to ‘rejoining his wife’, which would indicate the relationship was no longer in existence. However, the applicant denied these facts in his oral evidence, stating that his relationship with his wife was ongoing and that they have daily contact. It is difficult to determine the truthfulness of that statement, as the applicant’s wife was not available to give evidence. Some of his relatives, including his children, have provided statements to the delegate outlining the effect of the applicant’s offending and imprisonment on the family, and pleading for the applicant to be given another chance. The Tribunal accepts that evidence and the statements by the applicant’s relatives.

25. There are also statements from members of the community and community organisations, which offer help and support if the applicant was to remain in Australia. The Tribunal accepts that the applicant has formed strong community and social ties to Australia, in addition to his family ties.

26. There is no evidence to indicate that the decision on the applicant’s visa would impact Australian business interests.

27. The Tribunal finds that these factors weigh significantly in favour of not exercising the discretion to refuse the visa.

    OTHER CONSIDERATIONS

28. The list of considerations set out in Direction No. 90 is not exhaustive, and the Tribunal has had regard to other factors set out below.

29. In this case, an important consideration for the Tribunal is the real prospect of indefinite detention. If the discretion is exercised against the applicant, the applicant cannot be involuntarily removed from Australia as a protection finding has been made in relation to him. The applicant is not able to make other visa applications without Ministerial intervention. That is, the practical consequence of the decision to exercise the discretion to refuse the visa to the applicant is that he will remain in detention for possibly an indefinite period. In the Tribunal’s view, the legal consequences of the present decision and, in particular, the real possibility of indefinite detention, weigh very heavily in favour of not exercising the discretion.

    CONCLUSION

30. The Tribunal has found that the applicant does not pass the character test and that the discretion to refuse the visa is enlivened. In considering how to exercise the discretion, the Tribunal has considered the totality of the applicant’s circumstances, noting that the considerations set out in Direction No. 90 are not exhaustive.

31. The Tribunal finds that the offence committed by the applicant was extremely serious, involving a violent sexual offence against a woman. However, the Tribunal accepts the evidence of the various experts that the risk of the applicant’s reoffending is low. In reaching this conclusion, the Tribunal places some weight on the fact that the offending occurred during a single incident, and that there is no evidence of further offending or similar conduct at other times. The Tribunal has also formed the view that the risk of further imprisonment would act as a significant incentive for the applicant not to reoffend. Having regard to the nature of the offence, the Tribunal has formed the view that the protection of the community weighs in favour of exercising the discretion to refuse the visa, but only marginally, given the applicant’s low risk of reoffending.

32. The Tribunal has found, for the reasons set out above, that the expectations of the community would be such that the discretion should be exercised, and the Tribunal gives this factor significant weight against the applicant. There are other factors that are in favour of the applicant, the most significant of which is the nature and extent of his ties to Australia.

33. The Tribunal acknowledges that the primary considerations of protection of the community and expectations of the community weigh against the applicant, as do some of the other considerations. However, the Tribunal places some weight on the fact that the risk of reoffending is low and, in the particular circumstances of this case, the Tribunal has decided to give significant weight to the fact that if the discretion to refuse the visa is exercised, the applicant faces the prospect of lengthy or even indefinite detention. The Tribunal accepts that prolonged detention would cause significant hardship to the applicant, given his stated experience in detention and the fact that he had already spent over 15 years in detention.

34. Having regard to all the relevant circumstances, the Tribunal finds that the discretion to refuse the application under s 501 should not be exercised.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes it with a decision that the discretion to refuse the application for a Protection (Class XA) visa under s 501 is not exercised.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif.

...................................[SGD].....................................

Associate

Dated: 6 December 2022

Date(s) of hearing:	24 November 2022
Advocate for the Applicant:	G. Jeru, Australia Relationship Network Incorporated
Solicitors for the Respondent:	A. Chan, Sparke Helmore Lawyers