QDWQ and Minister for Home Affairs (Migration) - [2019] AATA 4622

QDWQ and Minister for Home Affairs (Migration) [2019] AATA 4622 (12 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5310
Re:QDWQ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Senior Member N A Manetta

Date:12 November 2019
Place:Adelaide

Pursuant to s 42(2) of the Administrative Appeals Tribunal Act 1975, the decision of the Tribunal is to affirm the decision under review.
...........[Sgnd].....................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION - mandatory cancellation of applicant’s visa – applicant has substantial criminal record – guilty of violent offences against a woman – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – non-refoulement obligations – other considerations – primary considerations outweigh other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
DOB18 v Minister for Home Affairs [2018] FCA 1523
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Ezebge v Minister for Immigration and Border Protection [2019] FCA 216
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2019] FCA 1132
Minister for Home Affairs v Omar [2019] FCAFC 188
Ogbonna v Minister for Immigration and Boarder Protection [2018] FCA 620
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (26 January 2007) < J, Brownlie’s Principles of Public International Law (9^th ed, Oxford University Press, 2019)
Department of Foreign Affairs and Trade (DFAT) Country Information Report: Afghanistan (27 June 2019)
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Britten-Jones
12 November 2019
Introduction

QDWQ (the applicant) is an Afghani national of Shi’a Hazara ethnicity. He was born in 1990 in Iran. His parents had sought asylum in Iran as many of the applicant’s relatives had been killed in Afghanistan.
In Iran, the applicant and his family were subject to regular discrimination, harassment and lived in extreme destitution. The family migrated to Australia in October 2011 under the Special Humanitarian Program (Subclass 202) visa and under the sponsorship of one of the applicant’s sisters. The applicant was aged 21 years at the time.
In Australia, the applicant was able to learn some English and gain full-time employment. He met a girl (who I will refer to as his ex-wife or IR) at college and commenced a relationship with her. They married soon after. This was the first romantic relationship the applicant had had with a woman. Their relationship became volatile as they argued over their financial struggles and the termination of a pregnancy.
In 2013, the applicant assaulted his ex-wife. He pushed her. In November 2013, an interim intervention order came into force prohibiting contact with her.
In 2014, the applicant committed a number of serious offences against his ex-wife in contravention of bail and interim intervention order conditions which will be discussed further below.
The decision to cancel the visa
On 17 May 2018, the applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa) was mandatorily cancelled (the original decision) under s 501(3A) of the Migration Act 1958 (the Act) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
In June 2018, the applicant, through his solicitor/migration agent, made representations seeking revocation of the mandatory cancellation decision. The applicant’s submissions in his statutory declaration made on 13 June 2018[1] can be summarised as follows:
·He had very little understanding of Australian law and a language barrier, which meant that he did not know how best to deal with the difficulties in his relationship with RI.
·He is very sorry for what happened, the offences were only in the context of his relationship with RI, he has done a course on domestic violence and he can guarantee he will never break any laws in the future.
·He is very close to his minor nieces/nephew in Australia.
·He is Hazara and a Shi’a Muslim who would face persecution if returned to Afghanistan. In the region in Afghanistan where his parents lived, there were powerful people who came to the Hazara lands to take them over. His father joined with other Hazara people to try and protect the land and family. His father’s two sons he had with another wife were killed. That is when they fled to Iran. His father was deported back to Afghanistan and was captured and injured. His father was only released after surrendering his land. His father was told that if he ever came back to Afghanistan that he would be killed. The applicant states those same people would kill him if he were to return to Afghanistan because they might think that he was there to reclaim his father’s land. He would also be killed by the Taliban or other insurgent groups who are targeting Hazara people. He would be at risk because he would not fit into society, would not know where to go, or how to avoid persecution. Because he grew up in Iran, he could easily be identified by the way he speaks.
·His immediate family, to whom he is very close, reside in Australia. His parents have serious health concerns. He has lost contact with any remaining family who reside in Afghanistan.
·He has issues with cholesterol and his heart which require medication and check-ups, as well as mental health conditions. He does not believe there would be any opportunities for him to get access to appropriate health care or counselling/psychological services in Afghanistan. His health conditions would be exacerbated if removed from Australia.
[1] G Documents, pages 65 – 68.
In submissions prepared by the applicant’s solicitor/migration agent, the applicant further submitted, in addition to the above, that he has undertaken rehabilitative courses since being sentenced, and has positive lifestyle factors which reduce his risk of reoffending. Those factors included his good employment history, ties to the community, and no drug use.
A number of character references[2] were also submitted on the applicant’s behalf by members of his family, friends, and work colleagues. They describe the applicant as a positive role model, hard-working, and caring person. His family express their reliance on him and fears for his life should he be returned to Afghanistan.
[2] G Documents, pages 63 – 66.
On 20 August 2019, after taking into account the above representations made by the applicant, a delegate of the Minister for Home Affairs decided under s 501CA(4) not to revoke the cancellation decision (the delegate’s decision). The delegate’s findings were on the basis that the nature of the applicant’s offending was serious and, together with the risk of reoffending demonstrated by the applicant’s lack of remorse and insufficient evidence of rehabilitation, and expectations of the Australian community, outweighed the other countervailing considerations.
The delegate also found that it was not necessary to assess any non-refoulement claims on the basis that the applicant is able to make a valid application for a protection visa.
The applicant has now applied to the Tribunal for a review of the decision of the Minister’s delegate to refuse to revoke the mandatory cancellation decision.
At the hearing, the applicant was represented by Mr G Aitken of counsel on instructions of Mr M Simmons, MSM Legal. The Respondent was represented by Ms L Butler, Australian Government Solicitor. The Tribunal was also assisted by an interpreter in the Dari language.
I am required to give meaningful consideration to, and to actively engage with, these representations made on behalf of the applicant.[3]
[3] GBV18 v Minister for Home Affairs [2019] FCA 1132 at [74] – [76].
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. The applicant concedes the same. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
Therefore, the only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the mandatory visa cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4]
[4] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
The Offending
The applicant’s first offence occurred in November 2013, approximately 2 years after he arrived in Australia. It was an assault. The applicant and his ex-wife were arguing when the applicant pushed her away. The applicant pleaded guilty and, in October 2014, was placed on a good behaviour bond for 6 months. No conviction was recorded.
The circumstances of the offending were described in the remarks on penalty[5] of the Magistrate as follows:
The defendant has no prior record and is still a young man at 23 years of age. The nature of the assault can fairly be described as of the lower end of the scale, no injury was occasioned which required treatment. It arose in the circumstances of an argument in which it appears as though the defendant and the victim were both giving as good as they were getting. Unfortunately the defendant reacted, as many males do, in a physical way by pushing his partner away, fortunately that is where the matter ended. The defendant comes before the court contrite, remorseful and apologetic.
[5] Supplementary G Documents, pages 768-769.
Following this assault, on 7 November 2013, the applicant was granted bail. On 13 November 2013, the applicant was issued with a Police Interim Intervention Order.
There are four other serious offences for which the applicant was convicted and sentenced in April 2017. These offences are:
(a)Serious criminal trespass;
(b)Threaten to cause harm to another;
(c)Threaten to kill or endanger life – aggravated offence; and
(d)Threaten to cause harm to another – aggravated offence.
The above four offences occurred on 27 January 2014. They were in contravention of bail and interim intervention order conditions, as the applicant had other pending charges at the time. The victims of this offending were RI and her sister. The factual circumstances of the applicant’s offending are contained in the learned Judge’s sentencing remarks (settled on 1 May 2017) as follows:
After you and the complainant separated there was an intervention order in place. [RI] got a house at [suburb]. She was scared to live at the house and scared of what you might do. She went to the house regularly to clean it. On 27 January 2014, she was there with her sister. You broke in through a window. You had a big knife and cut through the flyscreen. You had a rope in your hand and you were threatening towards your ex-wife. You wanted her to take back the report that she had made to the police bit she was not going to do that. You pushed her into the bedroom, saying that you would kill her. Her sister was trying to intervene. Eventually you threatening her and put a rope around her neck and pulled on it. She said in evidence she had difficulty breathing. You pushed her to the ground and tried to undress her. Her sister was trying to stop you. You threatened her sister and said you would hurt her. You wanted [RI] to withdraw the complaint that she had made to the police. Eventually you left the house and [RI] and her sister went home. There police were called and an ambulance conveyed her to hospital. She had red marks on her neck.[6]
[6] G Documents, pages 36-42.
The applicant was found guilty following a trial. The applicant elected not to give evidence, however three witnesses provided an alibi for the applicant which was “... rejected by the jury and rightly so …”[7]
[7] Ibid.
The learned Judge referred to victim impact statements from RI and her sister and said:
[RI] is still in fear and shock, she fears for her life and that of her family members because she regards you as a very dangerous man who has used force against her and threatened to kill her again if she told anyone about the domestic violence was occurring. Her sister has been in shock and fear for her own life and that of [RI] and other family members. She said in her victim impact statement that, psychologically, she’s very affected because now she feels scared and terrified of you.
In sentencing the applicant, the learned Judge said:
Your offending is very serious. The sentence that I impose must have a significant degree of deterrence associated with it. It cannot be overlooked that you committed the offences for which you were found guilty by the jury, after you committed the offence of assault and were subject to an intervention order. To date you have shown no remorse and there is no acknowledgement of your offending. Whilst I accept that you have not reoffended whilst you have been on home detention, it cannot be said that rehabilitation has occurred, nor can it be said that you have any recognition of the domestic violence issues that have arisen in relation to you and your ex-partner. In recent times the serious issue of domestic violence and how to address it has been publicly debated. It is well-known to all of us that the issues in relation to domestic violence have wide ranging ramifications. The law is very clear, that in relation to such issues, deterrence plays an important role. This deterrence is not just directed at you as personal deterrence but to the wider community who are minded to commit offences such as this.
The law has always been concerned to protect the vulnerable. This is especially so when events occur behind closed doors such as occurred in this case. Your attitude towards your ex-partner was controlling and violent. You were in effect attempting to silence her from proceeding with what was a proper complaint that she had made to the police, on an earlier occasion in relation to your violence. You should have been well aware at that stage that the system would not tolerate behaviour such as an assault against your ex-partner.
You entered the home in which she had sought refuge with a knife and a piece of rope. You attempted to choke her with the rope and threatened her and her sister with the knife. You have shown no remorse in relation to your behaviour. You have shown no insight in relation to your behaviour towards your wife.
Each of the reports that I have received in relation to you and your family speak only of the consequences upon you of your behaviour. Nowhere has there been a moments contrition from you or a recognition it seems by your family of the seriousness of your conduct and the fact that this conduct will not be tolerated in our community.
… you are not a first offender and you cannot expect the leniency of this court in relation to this offending. You have not shown any remorse or contrition for your offending and the offences are of a very serious nature.
In respect of the serious criminal trespass, threaten to cause harm to another, and threaten to kill or endanger life, the applicant was sentenced to 5 years imprisonment. In respect of the threaten to cause harm to another offence committed against RI’s sister, the applicant was sentenced to 18 months imprisonment to be served concurrently. A non-parole period of 2 years was set.
On 4 December 2015, the applicant pleaded guilty and was convicted in the Magistrates Court of South Australia of Fail to comply with bail granted agreement, but was discharged without penalty. It was accepted that this breach arose from a misunderstanding by reason of a language barrier.
The Applicant was on home detention bail from April 2014 until he was sentenced in April 2017. He has been in custody since that time.
Legislative Framework
Under s 501(3A) of the Act, 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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[8]
[8] Migration Act 1958 (Cth), s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[9] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[9] Ibid, s 501CA(4).
Where the original decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Is there another reason why the original decision should be revoked?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[10]
[10] Direction 79, at paragraph 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.

Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
Relevant factors under this consideration include:
·the principle that violent crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; and
·the sentence imposed by the courts for a crime or crimes (subject to the preceding dot point).
The crimes committed by the applicant are plainly very serious. The applicant concedes this point. The offending may be categorised as comprising of offences of violence against women, and breach of bail conditions and an intervention order. The sentence of 5 years imprisonment reflects how serious the offending was. Whilst the applicant entered a guilty plea to his 2013 offence, he pleaded not guilty to the more serious offences. His ex-wife was required to give evidence. The facts of the offending as stated by the trial Judge are detailed above and so it is not necessary to repeat them here.
The 2014 offending demonstrates an increase in seriousness of the applicant’s conduct following the 2013 offence, and particularly so when in contravention of bail and interim intervention order conditions. It also shows a disregard for authority and the law.
The trial Judge noted:
It cannot be overlooked you committed the offences for which you were found guilty by the jury, after you committed the offence of assault and was subject to an intervention order. To date you have shown no remorse and there is no acknowledgment of your offending.
Your attitude towards your ex-partner was controlling and violent. You were in effect attempting to silence her from proceeding with what was a proper complaint that she had made to the police, on an earlier occasion in relation to your violence. You should have been well aware at that stage that the system would not tolerate behaviour such as assault against your ex-partner.[11]
[11] G Documents, pages 36-42.
Following the first assault on 7 November 2013 he was placed on bail with a condition that he not approach his ex-wife. He was then issued with a Police Interim Intervention Order which was, based on a proof of service, served personally on the applicant on 13 November 2013. The interim intervention order provided that the applicant must not, inter alia, assault or threaten his ex-wife or enter into her place of residence. The grounds for the order included three reports of assault by the applicant on RI since 16 August 2013 involving hitting and kicking in addition to the offending on 7 November 2013. The applicant disregarded the bail conditions and the terms of the interim intervention order and went on to commit the significantly more serious conduct in January 2014 which involved violence and threatening behaviour to his ex-wife and her sister who have suffered greatly and lived in fear as a result. The January offending should be viewed even more seriously given the effective warning that the applicant received in November 2013. It concerns me greatly that the applicant has shown himself to be a person that disregards authority and warnings and does not seem to learn from his lessons. The applicant did not accept his wrongdoing for years and pleaded not guilty which would have added to the trauma experienced by his victims.
In conclusion, I find that the nature and seriousness of the applicant’s conduct weighs heavily in favour of not revoking the visa cancellation because it involved domestic violence and threatening behaviour of a most serious nature against women which caused genuine fear and psychological detriment.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further acts of domestic violence and threatening behaviour, then the resulting harm would be very serious. The nature of the harm on the victims as a result of the applicant’s offending was summarised by the sentencing Judge in her remarks as follows:
I have received victim impact statements from [RI] and [RI’s sister]. [RI] is still in fear and shock, she fears for her life and that of her family members because she regards you as a very dangerous man who has used force against her and threatened to kill her again if she told anyone about the domestic violence that was occurring. Her sister has been in shock and fear for her own life and that of [RI] and other family members. She said in her victim impact statement that, psychologically, she’s very affected because now she feels scared and terrified of you.[12]
[12] Ibid.
If the applicant were to engage in such similar criminal conduct, then the nature of the harm caused would clearly be very serious.
Likelihood of further criminal or other serious conduct
The respondent submits that the likelihood of the applicant reoffending is substantial and the factors which increase his likelihood of reoffending include:
·his 2014 offending which was in breach of bail/intervention order conditions;
·his lack of appreciation of the seriousness of his conduct as demonstrated by his initial denial for the offending, and then later blaming his conduct on his lack of English and knowledge of Australian laws;
·an ongoing lack of understanding of the nature and severity of his offending as reflected in the evidence he gave before the tribunal;
·limited rehabilitation to date and Dr White’s reports stating that he has a moderately high risk of violent re-offending (when compared to the community sample) and the applicant’s limited ability for further rehabilitation noting his low level of IQ and mental health;
·the context of his offending in a domestic relationship which will not be mitigated by family support given he has not been candid with family members in the past, his family’s preparedness to provide false alibis, and their own un-wellness.
The respondent noted that on 11 December 2013, South Australian police completed a domestic violence risk assessment which rated the applicant’s risk as being in the ‘high’ range. As the risk assessment foreshadowed, the applicant did not change his behaviour and went on to commit more serious violent offending against his ex-wife and her sister just 2 months later in January 2014.
The applicant submits that, whilst he was scared to admit wrongdoing in the past, he now accepts his “mistakes” and will not make such “mistakes” in the future. He had lied to his family about the offending because he was worried about their health and did not want to make them worry. The applicant stated that he now talks more openly with his family about domestic violence and any problems that he is facing, and that they are able to provide him with advice. If he is released into the community, he wants to work, look after and support his family, make no more “mistakes”, continue with counselling and other rehabilitative courses, and try to continue his education.
The applicant submitted that he did not know what he had done was wrong and this may be in part due to his lack of English and knowledge of Australian laws which caused him to not take the intervention order very seriously. He did not know what domestic violence was.
Whilst in custody, the applicant has completed a domestic violence course. He gave evidence that he has learned that he has to control himself and his behaviour so that he does not argue with or harm others, and that he should respect, love and care for others. He accepted that what he did to his ex-wife was domestic violence.
The applicant’s counsel submitted that the stressors that existed at the time of the applicant’s offending have reduced, namely he is no longer in a relationship with his ex-wife, his English has improved, and he has a greater insight into his offending. The applicant said that if he is faced with problems in the future, that he will now ask for help if he needs it.
The applicant’s younger sister gave evidence at the Tribunal. She said that she used to not talk about problems with her brother before he went to prison, but that they now talk about the offending and she believes this is a sign that he has learnt about domestic violence and this gives her hope for him to come back to the community and start a new life. The younger sister expressed her love for the applicant and intention to support him. She said the applicant is missed and needed to help look after their ill elderly parents.
I have also taken into account the report and expert evidence of psychologist Dr White. Dr White opined that, in relation to the applicant’s risk of reoffending, his assessment did not suggest that the applicant was a violent person. This is on the basis that the violence was directed at his former wife as a way of control, and that violence is generally out of his character. Nevertheless, Dr White assessed the applicant on a Violence Potential Index scale as having a moderately high risk of violent reoffending when compared with a community sample. Dr White reported that the applicant had expressed remorse to him but that the applicant did not elaborate because the concept of remorse may be beyond him. When asked in cross examination if the applicant understood that domestic violence is wrong, Dr White answered that he could not say yes or no.
When asked about the effectiveness of the applicant’s rehabilitation to date, Dr White said in his report that due to his limited intellectual skills he would struggle with formal rehabilitation programs. He noted the two and a half month domestic violence program through the Port Augusta prison but made no comment about its effectiveness. Dr White assessed the applicant as experiencing problems in the areas of mental health and violence prevention, and therefore recommended that he be referred to a relevant domestic violence program.
It was noted during the hearing that the applicant had not reported the 2013 offending to Dr White and that he therefore did not take it into account when writing his 15 March 2019 report. Dr White expressed some concern about the prior history of an assault in a domestic setting but said that it did not impact upon his expressed opinions except that he would place less weight on the “considerable remorse”[13] expressed by the applicant.
[13] Ibid, at page 180.
I do not think that one can ignore the applicant’s failure to fully disclose his offending to Dr White. I consider that the applicant’s failure to inform Dr White about the 2013 assault (which was serious enough for him to be placed on a good behaviour bond by the Magistrate) and the breaches of bail conditions and the intervention order shows a lack of candour and an ongoing lack of understanding about the seriousness of any form of domestic violence. It is also of concern that Dr White was, first, unable to say that the applicant presently understood that domestic violence was wrong and, second, that he considered that the applicant still required further rehabilitation in the form of a domestic violence program. The applicant himself admitted not previously knowing what domestic violence was but he has not established that he currently has a good understanding of it and its consequences. It is apparent from Dr White’s evidence that the applicant falls well short of the necessary level of rehabilitation so as to conclude that he has an acceptable risk of re-offending.
The applicant referred to his having engaged in a domestic violence rehabilitation program but no detail was provided as to what this course involved except that it lasted two and a half months in 2018. Given that he was found guilty and sentenced in April 2017 and that limited information as to the rehabilitation course has been provided, I do not consider that the evidence establishes that the applicant has taken active, timely or appropriate steps towards rehabilitating himself. I take into account the assistance and support provided by the counsellor from the Survivors of Torture and Rehabilitation Service but I note from the 27 January 2017 report that this focussed on managing his symptoms of major depression and was not specifically directed to addressing issues related to domestic violence.
A further major concern is the oral evidence given by the applicant in cross examination. He apologised for his conduct in January 2014 and repeatedly said that he had made a “mistake”. He went on to say that he went to his ex-wife’s house to resolve their problems and because he was wondering how he could help her and how he could get back with her. This is inconsistent with the Judge’s sentencing remarks that he went there with a knife and a rope for the purpose of getting her to retract a complaint of earlier violence. A further inconsistency is that the applicant said that he brought the rope but not the knife. At first, in his oral evidence, the applicant denied threatening her but then accepted that he did, and apologised to the Tribunal. He then denied attempting to silence her. When asked about the impact on his ex-wife, he said that “she got upset” and “I am not sure if she got scared.” When asked if it was serious behaviour, he said it was a mistake and he apologised and promised not to do it again. He elaborated by saying that his mistake was to go to her home and that “maybe she was scared of me”.
This oral evidence from the applicant concerns me greatly. It shows a complete lack of insight as to the seriousness of his offending and the impact it had on both his ex-wife and her sister. It is of great concern to me that the applicant would not appreciate the fear he created when he broke into his ex-wife’s house by breaking a window and cutting the flyscreen with a knife, then threatening to kill her whilst holding a knife and a rope, then using the rope to choke her to the point that she had difficulty breathing and then pushing her to the ground and trying to undress her. There is no doubt that this violent and threatening conduct “scared” his ex-wife and her sister – the applicant’s lack of appreciation of the consequences for his victims from his conduct indicates an ongoing misunderstanding as to how serious domestic violence is.
In light of this oral evidence and taking into account all the evidence given at the hearing including Dr White’s opinions, I am not able to accept the applicant’s statements of remorse or his promises that he will not re-offend. I am also unable to accept that he is appropriately rehabilitated. Further, I am unable to accept the evidence of his sister that she has noted a change in his behaviour which reflects an understanding as to how unacceptable domestic violence is. I consider that there is a very real and substantial risk that the applicant will use domestic violence in any future relationships. Dr White opined that, based on his psychometric testing, the applicant was a moderately high risk of re-offending (when compared with a community sample). The applicant’s oral evidence supports his opinion. Such a level of risk that there will be future victims of serious domestic violence at the hands of the applicant is unacceptable.
I note that Dr White when asked at [4.6] about the risk of re-offending said that, with the support of his family, his risk of future offending would likely be relatively low. I am unable to accept that opinion firstly because it seems on its face inconsistent with his previous opinion that he is a moderately high risk on the Violence Potential Index and secondly because it was based on the applicant’s erroneous statement as to his prior offences and thirdly (and most importantly) in light of the applicant’s oral evidence, which I note was given subsequent to the oral evidence from Dr White.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct.
I find that the nature of the harm should the applicant engage in further similar or other criminal conduct is very serious and I consider that there is a moderately high risk that the applicant will reoffend. The primary consideration of protection of the Australian community weighs heavily in favour of non-revocation.
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The following factors that I must consider and are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant has two nieces and one nephew under 18. The eldest niece (RT) is aged 16 years, the nephew (SMD) is 4 years old, and the youngest niece (SMT) is 1 year old. The applicant gave evidence that he loves them all and has seen them regularly whilst in prison. Before being imprisoned he helped financially with RT (whose father had passed away) by doing shopping and buying books and toys. They are a close-knit family who spend a lot of time together.

The sister of the applicant gave a written statement that she and her daughters are struggling to cope without him. Her husband had passed away so the applicant provided past support and would provide support in the future. It is accepted that it is in the best interests of RT to have a male role model in her life. RT’s older sister wrote a letter referring to the support and care provided by the applicant to her and her younger sister when they had no money to survive and no support from a father. She said that she and her younger sister need him to be with them and need his support.
As the relationship between the applicant and his nieces and nephew is non-parental, less weight is generally to be given. However, the Tribunal acknowledges that the applicant has played a more primary role in RT’s life as her mother is widowed and because her mother is struggling mentally with severe symptoms of PTSD and related psychological issues. I accept that the family lives close to one another and interact frequently in one another’s lives.
The applicant has played a less significant role in the lives of SMD, who was very young when the applicant was taken into custody, and SMT, who was born whilst the applicant was in custody. SMD and SMT also have both mother and father present in their lives to fulfil the parental role. I take into account their limited meaningful contact with the applicant. Any further separation from the applicant would not likely impact upon them.
Whilst the applicant has been in custody, he has kept in contact with the children through daily telephone calls and twice-weekly visits. The applicant says that he would be unable to maintain contact if he is deported as he may lose his life. If he is released into the community, then the applicant intends to resume his role in providing financial aid and carer support for the children.
The respondent concedes that to the extent the children would be impacted by the applicant’s removal, it would be in their best interests for the original decision to be revoked. However, those interests should be given limited weight in light of the facts above.
The interests of each of the children weigh slightly in favour of revoking the original decision. The interests of RT are greater than that of the other children given the applicant’s relationship with RT has been of longer duration and RT does not have both parents present. Less weight is placed on this primary consideration, however, as the nature of the relationship is non-parental and there are others who can perform this parental role.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[14] Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[15]
[14] [2017] FCA 1466.
[15] [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
This expectation was read to the applicant in the course of cross-examination. He said he understands the expectation and again apologised and said he “won’t make any such mistake in future”.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him. That breach of trust is more significant given the January 2014 offending took place after he had been arrested for the less violent assault in November 2013 and whilst on bail and the subject of a Police Interim Intervention Order. As the trial Judge noted, the applicant must have been well aware that further domestic violence would have serious consequences for him but that did not deter him. The violent nature of that further offending and the applicant’s failure to understand the consequences of his conduct mean that there is an unacceptable risk that he will breach that trust again in the future. The offences committed against his ex-wife and her sister are extremely concerning and a non-citizen who has committed such serious crimes should generally expect to forfeit the privilege of staying in Australia.
Australia has a low tolerance of any criminal conduct by a person such as the applicant who had been participating in and contributing to the Australian community only for a short period of time before offending. The offending took place about two years after he arrived, which is a relatively short period of time. Even now, as evidenced by his conduct before the Tribunal, the applicant has no meaningful insight or proper understanding of the consequences of his action. To commit multiple acts of domestic violence against a woman only two years after arriving in Australia is unacceptable.
Australia expects non-citizens to be law-abiding, to respect Australia’s law enforcement framework and to not cause or threaten harm to individuals. The applicant has failed to live up to each of these three expectations. In these circumstances, the Australian community would expect the Australian Government to cancel the applicant’s visa and would expect that the applicant forfeits the privilege of staying in Australia.
Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh heavily in favour of non-revocation of the cancellation decision.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[16]
[16] See SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [86]
I take into account that the applicant has raised a concern that because he is Hazara and a Shia Muslim he would face persecution if returned to Afghanistan. He has said that in the region in Afghanistan where his parents lived, there were powerful people who came to the Hazara lands to take them over. His father joined with other Hazara people to try and protect the land and family. His father’s two sons he had with another wife were killed. That is when they fled to Iran. His father was deported back to Afghanistan and was captured and injured. His father was only released after surrendering his land. His father was told that if he ever came back to Afghanistan that he would be killed. The applicant states those same people would kill him if he were to return to Afghanistan because they might think that he was there to reclaim his father’s land. He would also be killed by the Taliban or other insurgent groups who are targeting Hazara people. He would be at risk because he would not fit into society, would not know where to go, or how to avoid persecution. Because he grew up in Iran, he could easily be identified by the way he speaks.
I also take into account that the applicant has issues with cholesterol and high blood pressure which require medication and check-ups, but I note that the applicant told Dr White that his physical health was “ok”. The applicant has a past history of depression and anxiety but he has not been treated for those conditions. He does not believe there would be any opportunities for him to get access to appropriate health care or counselling/psychological services in Afghanistan. His health conditions would be exacerbated if removed from Australia. Dr White expressed an opinion that due to his low intellectual capacity he would have difficulty surviving if returned to Afghanistan.
The concerns raised that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm.[17] In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant, including the impact of harm which does not engage Australia’s non-refoulement obligations.[18]
International non-refoulement obligations
[17] Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [62].
[18] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.
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.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[19] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[20]
[19] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[20] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27].
The applicant contends that he would face harm if returned to Afghanistan and that the Tribunal needs to consider Australia’s international non-refoulement obligations.
Paragraph 14.1(1) of Direction 79 outlines Australia’s non-refoulement obligations pursuant to international human rights treaties and the 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”. Direction 79, at paragraph 14.1(4), also states:
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
It is accepted by the applicant that he has the right to apply for a Protection visa.
Whilst I am satisfied that I do not fall into jurisdictional error by deferring the consideration on non-refoulement obligations until the determination of any application for a protection visa,[21] the recent decision in Minister for Home Affairs v Omar[22] means that I must give consideration to such claims raised by the applicant. I note and adopt the respondent’s submission that the appropriate course is for the Tribunal to consider whether the existence of non-refoulement obligations is ‘another reason’ for revoking the cancellation decision. In any event, I am not released from “considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations”.[23]
[21] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [22]-[35]. See also GBV18 v Minister for Home Affairs [2019] FCA 1132 at [182] and the cases cited in [59]. See also Ministerial Direction No. 75 dated 5 September 2017.
[22] [2019] FCAFC 188.
[23] Ibid, [87]; Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216, [28].
In making an assessment as to the existence of non-refoulement obligations, I bear in mind the following:
(a)there is no legal impediment to the applicant applying for a Protection visa in the future, and Ministerial Direction 75 provides that when considering a Protection visa application, a delegate must first assess a person’s refugee and protection claim before considering any ineligibility grounds;
(b)I am not required to carry out the same level of analysis as would be expected in the assessment of a Protection visa application;
(c)it is open to me to give greater weight to the primary considerations in Direction 79 than to this ‘other consideration’.
The applicant has made a number of claims in expressing fear of harm if returned to Afghanistan.
First, the applicant and his family migrated to Australian through the Humanitarian Program. To be eligible for that program, the primary applicant (ie the applicant’s father) had to demonstrate that he was subject to substantial discrimination, amounting to gross violation of human rights in his home country and is living in a country other than his home country. These claims were accepted and the applicant submits that they extend to him.
Second, the applicant expressed a fear of persecution upon return to Afghanistan on the basis that he is a Shi’a Muslim of Hazara ethnicity.
Third, the applicant also expressed fear of harm as a returnee. The applicant claims that the fact he has been living in a western country places a target on his back. He says he will not fit into the Afghan society and that people would be able to see this. He says that because he did not grow up in Afghanistan he has a different accent which would identify him. He has a specific fear of being harmed by those who harmed his father.
In evidence, the applicant said he fears the Taliban if returned to Afghanistan because his father was stabbed, assaulted and persecuted when he had returned there. He said he fears persecution on the basis that it is not a safe place, he has no connections or family/friends there, he does not know where he can go to live, he has never resided in Afghanistan, and he would be easily identified due to his accent.
The applicant was not cross examined with respect to these claims and I have no reason to doubt them. The general claims are supported by the most recent DFAT Country Information Report on Afghanistan dated 27 June 2019 (DFAT report).
The DFAT report contains the following relevant observations:
(a)the substantial drawdown of the international presence and associated reduced aid and other financial flows since 2011 has had a major impact on Kabul’s economy. The recent large-scale influx of internally displaced persons and returnees from abroad has placed considerable pressure on Kabul’s labour market (p 10).
(b)the poor security situation and limited development of resources means that job creation has been unable to keep up with population growth, and few Afghans have access to productive or remunerative employment. A quarter of the labour force is unemployed and 80% of employment is vulnerable and insecure, comprising self-employment, day labour, or unpaid work (p 11).
(c)The Afghan health system has improved significantly since 2001, from a very low base. Whereas only around 10% of Afghans had access to basic health services in 2001, this proportion rose to around 85% of the population in 2015 (p 12).
(d)Since mid-2016 militants have conducted an ongoing series of major attacks against Shi’a targets, including political demonstrations and religious gatherings. The number and scale of attacks on Shi’a increased throughout 2017. DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups for attack based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major city such as Kabul and Herat (p 29).
(e)Afghanistan generally accepts both voluntary and involuntary returns from western countries, but there have been some occasions in recent years in which the government has refused to grant landing permission for incoming flights carrying returnee. Returnees from Western countries almost exclusively returned to Kabul. There are no tracking mechanisms for those returned to Afghanistan, and it is difficult to assess the conditions they face on return. Amnesty international has reported that there have been cases in which returnees from Europe have been killed after returning to Afghanistan. DFAT has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum, and assesses that these cases are more likely to have related to the highly dangerous general security situation, which affects all Afghans (p 51).
(f)DFAT understands that most returnees take measures to conceal their association with the country from which they have returned, and keep a low profile on return. DFAT assesses that people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar profile (p 51).
The applicant claims to fear harm on the following bases:
(a)he will be specifically targeted by the same people who injured his father;
(b)his ethnicity and religion as a Shi’a Hazara; and
(c)that he grew up in Iran and is returning from a western country.
The DFAT report establishes that the situation for Shi’a Hazara in Afghanistan remains dangerous. I consider that this danger is compounded by the specific circumstances of the applicant’s family in particular if he were to return to the area where the family owned land. I consider that wherever the applicant went in Afghanistan he faces the real risk of being identified as a Shi’a Hazara because of his accent and his status as a returnee from a western country.
I accept that the applicant is owed non-refoulement obligations and that there is a real risk of harm if the applicant returns to Afghanistan.
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa, bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur: s 198 of the Act. However, it is relevant also that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A of the Act. Further, the applicant would not be liable to be removed in the event he applied for, and was granted, a protection visa.
The applicant is currently serving his term of imprisonment but at the end of the term, subject to the matters raised in the above paragraph, he would be liable to be held in immigration detention until he was removed from Australia. Given the obligation to remove as soon as reasonably practicable any detention would not be indefinite.[24]
[24] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 at [158].
Given that the legal consequence is that the applicant would be returned to Afghanistan, subject to any successful Protection visa application, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation but I note that the applicant has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and poverty in the event that he were to return to Afghanistan.
Strength, nature and duration of ties

In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be give where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has lived in Australia for 8 years, having arrived in 2011 at the age of 21 years. I note the applicant has been in custody for the last two years. The applicant’s offending was committed in November 2013 and January 2014, just over two years after arriving in Australia, when the applicant was approximately 23 years of age. The applicant did engage in English studies and employment in Australia, having worked full-time since arriving. I conclude that there was a period of contribution to the Australian community, but note that the applicant did commence offending relatively soon after arriving. In these circumstances, I place slight weight on the length of time in Australia.
The applicant has very strong family and social ties with Australian permanent residents. I accept that the applicant’s family will be negatively impacted should the applicant be returned to Afghanistan, particularly the applicant’s father for whom the applicant was the primary carer, and the applicant’s mother and siblings who also rely on the applicant for assistance and support. The impact on the applicant’s parents is made worse because of their poor health.
The applicant’s sister said in her evidence that, since the applicant has been in custody, she is the one who has been taking care of her parents. To do this, she was required to withdraw from her university studies in her second year.
In my opinion, the strength, nature and duration of ties weigh in favour of revocation of the original decision.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
I have not received any direct evidence with respect to the impact non-revocation would have on the victims of the applicant’s criminal behaviour and their family members. The applicant has stated that he has no intention to resume contact with his ex-wife or her family. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Afghanistan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·The applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to them in that country.
The applicant has never lived in Afghanistan, having been born and raised in Iran and arriving in Australia in 2011 at the age of 21.
The applicant suffers from high cholesterol, high blood pressure, depression and anxiety. The DFAT report states that the Afghan health system has improved significantly since 2001, but from a very low base. Whereas only around 10 per cent of Afghans had access to basic health services in 2001, this proportion rose to around 85 per cent of the population in 2015. I note that the applicant may have some difficulty in accessing health care services when compared to Australia but it is not likely that he would be denied access in Afghanistan given the improvements to the health care system referred to above.
The applicant submits that, whilst he can speak the language and carry a conversation, his accent can easily be identified. On a cultural level, he does not know how to integrate into Afghan society, and fears harm because he is an Afghan of Iranian upbringing, and will be seen with suspicion as a returnee from a western country. I have dealt with the applicant’s fear of harm under the heading of non-refoulement.
The applicant has no immediate family that he is aware of in Afghanistan. The applicant submitted that it would be difficult to re-establish himself in Afghanistan.
In the report from Dr White it was reported that the applicant’s physical health was “ok” but that his mental health was “bad” in particular because of the worry of being deported. Further, the applicant has a past history of depression and anxiety. Dr White conducted an intelligence test on the applicant and the result was that he was in the intellectual disability range of intelligence and around the 1^st percentile of the age equivalent population with poor problem-solving skills equivalent to those of an average seven-year-old child. Whilst the intellectual capacity of the applicant would make life more difficult in Afghanistan, I note that it has not prevented him from conducting some study, obtaining employment and a truck driving licence and a forklift driving licence whilst in Australia. His employer at Premier Fruits Group wrote a positive reference about the applicant based on a two-year working relationship with him:
[The applicant] is a valued member of the workforce at [workplace], he undertakes the important role of truck and forklift driving amongst other roles within the business. [The applicant] is a diligent, reliable, respectful and hard-working member of the team, he greatly appreciates his position within the business and has a good working relationship with other members of the workforce. [The applicant] has developed many skills during his employment with us, in particular his ability to work with numbers and often complex tasks.
There was a further reference from the operator of a travel agency for whom the applicant volunteered to help with his Persian customers. They became friends and the applicant helped him with his customers (for example, filling in forms required for new passports) and he also assisted by running the shop when he was away. He considered that the applicant had a bright future and would be a successful person.
The applicant’s elder brother referred to him as having a magnificent talent and skills in many positions “such as mechanic, driving, tiling, designing and problem-solving.”
It is apparent that the applicant has managed to overcome the adversity associated with settling in a new country, namely Australia, as evidenced by the above references and achievements. I was also able to form my own view of the applicant based upon him giving evidence through an interpreter for a significant period of time at the hearing during which he had little difficulty with respect to comprehension or expression. For this reason I give minimal weight to the opinion expressed by Dr White as to the applicant’s level of intelligence. I do not consider that the applicant’s level of intelligence would create any greater impediment if returned to Afghanistan than for the average person with his background.
I have no doubt that the adversity that the applicant overcame when settling in Australia will be significantly less than the adversity he would face in Afghanistan. Nevertheless, he can speak the language and has developed skills that will assist him to gain employment. I consider that his age and physical health will not be a barrier for him. I would expect that mental health services will be significantly worse than in Australia which will create an impediment for him.
I conclude that there would be very real and substantial impediments for the applicant if he were removed to Afghanistan. On a whole, I am satisfied that this consideration weighs moderately in favour of revocation of the original decision.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations. The primary considerations relating to the protection of the Australian community and the expectations of the Australian community are overwhelmingly in favour of not revoking the cancellation decision. The offending was most serious; involving domestic violence which caused long-lasting fear in the victims. The domestic violence was not an isolated event. It occurred only two months after an earlier assault and whilst the applicant was on bail and the subject of an intervention order. The seriousness of the offending was reflected in a five year prison term.
The applicant accepted that at the time of the offending he had no understanding of what domestic violence was but he has failed to establish that he has a better understanding of it now. In fact, he showed whilst giving evidence that he still has no understanding of the fear he created when he used a knife and a rope to threaten the life of his ex-wife and her sister. He has expressed no meaningful remorse, instead saying his conduct was a mistake and that he would not do it again. I do not consider that the applicant has developed an appropriate level of insight into the seriousness of the domestic violence perpetrated upon his victims. There is a real and substantial risk that the applicant will reoffend by committing further domestic violence. That risk is unacceptable to the Australian community who, in these circumstances, would expect the applicant to forfeit the privilege of staying in Australia.
There are countervailing considerations but they do not outweigh the primary considerations of the protection and expectations of the Australian community. I have given some weight to the interests of the applicant’s two nieces and a nephew when considering the primary consideration of the best interests of minor children. The applicant has the most meaningful relationship with his 16 year old niece whose father has passed away. It would be in her best interests for the applicant to be able to continue his support and position as a role model when his prison term ends. The interests of the younger niece and nephew are impacted to a lesser extent because of the limited relationship they have had with the applicant and because they have both a mother and a father who provide a parental role for them.
With respect to the other consideration of the strength, nature and duration of ties at paragraph 14.2 of Direction 79, I note that the applicant comes from a tight knit and close family who will be impacted by his removal from the country. His siblings will miss him and the support he previously provided to them and their children. The effect of non-revocation on his parents will be significant because they are suffering physically and mentally. Fortunately, the elderly parents have others within the family who are able to continue to look after them. The same can be said for the nieces and nephews of the applicant. This is a factor that weighs in favour of revoking the cancellation decision but I take into account that the applicant did not arrive in Australia as a young child and that less weight should be given to this factor given that the applicant began offending only two years after arriving in Australia. The applicant should be commended for his positive contribution to the community as an employee and volunteer but overall, the strength, nature and duration of ties is a factor which only marginally favours revocation of the cancellation decision.
The most significant, in terms of weight, of the other considerations are the international non-refoulement obligations and the extent of impediments if removed. Both of these considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of harm upon his return to Afghanistan. The applicant has no links with Afghanistan because he has never lived there and has no remaining family there. As a Shi’a of Hazara ethnicity, he will face persecution and his life may well be endangered. I note that the applicant is a single man aged 23 years old and with no children. I also note that the outcome of being returned to Afghanistan is not certain, nor is it an immediate consequence of non-revocation, because the applicant still has the opportunity of applying for a Protection visa. I should not speculate as to what might or might not occur in future decision-making.[25]
[25] DOB18 v Minister for Home Affairs [2018] FCA 1523 at [35].
In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations of the protection and expectations of the Australian community than on the other countervailing considerations. The dangers and difficulties that the applicant would meet upon his return to Afghanistan are real and serious but they do not outweigh the very real risk of harm to the Australian community if the applicant is not removed. The applicant has committed very serious crimes and has not shown appropriate remorse nor has he shown that he is rehabilitated. By cancelling the applicant’s visa, the Government is exercising its commitment to protecting the Australian community from harm. Given the seriousness of the offending by the applicant and the very real risk that he will reoffend, the primary considerations of protection and expectations of the Australian community outweigh any claims with respect to the other considerations including non-refoulement and the extent of impediments if removed. The countervailing factors referred to above do not outweigh the factors in favour of non-revocation. In this regard, I note that primary considerations should generally be given greater weight than the other considerations[26]. I see no reason not to apply this approach in this case.
[26] Direction 79, at paragraph 8(4).
This conclusion is reached by applying the principles in [6.3] of Direction No. 79 to the specific circumstances of the applicant who has committed serious crimes involving domestic violence, breach of bail conditions and breach of an intervention order:
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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 – by committing the crimes of domestic violence, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and he has threatened and caused harm to two vulnerable women.[27]
(b)The Australian community expects that the Australian government should cancel the visas of non-citizens who commit such serious crimes in Australia.[28]
(c)The applicant, as a non-citizen who has committed a serious crime of a violent nature against women, should generally expect to forfeit the privilege of staying in Australia.[29]
(d)Australia has a low tolerance with respect to the criminal offending of the applicant who has been participating in, and contributing to, the Australian community only for a short period of time.[30]
[27] Ibid, at Principle 6.3(1).
[28] Ibid, at Principle 6.3(2).
[29] Ibid, at Principle 6.3(3).
[30] Ibid, at Principle 6.3(5).
It follows from the application of these guiding principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
In this case the Tribunal was constituted by two members. As Deputy President, I am the presiding member. I have read the reasons of Senior Member Manetta who considered that there was another reason to revoke the visa cancellation decision. The Senior Member concluded that the primary considerations weigh heavily in favour of not revoking the cancellation decision. In that regard, we agree. Where we disagree is with respect to the weight to be given to the other considerations. By operation of section 42(2) of the Administrative Appeals Tribunal Act 1975 the disagreement is settled according to the opinion of the presiding member. Consequently, the decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

....[Sgnd]................................................
Associate
Dated: 12 November 2019
REASONS FOR DECISION
Senior Member N A Manetta
12 November 2019
INTRODUCTION

This is an application by QDWQ, an Afghani national who has committed serious offences in Australia, seeking a review of a discretionary decision of the Respondent’s delegate that a mandatory cancellation of his resident return visa (effected under s 501(3A) of the Migration Act 1958) should not be revoked under section 501CA(4). As a result of the delegate’s decision, the visa cancellation remains in force.
Hearing the matter afresh, the Tribunal must decide whether to revoke the visa cancellation. The Tribunal must reach the correct or preferable decision on the basis of the evidence adduced before it, whether or not there is any identifiable error in the Minister’s delegate’s approach. That is, the Tribunal has to exercise the statutory discretion de novo on the merits.[31]
[31] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68.
At the hearing before us, the Applicant was represented by Mr Aitken and Mr Simmons; the respondent, by Ms Butler. The Tribunal heard oral evidence from the Applicant, the Applicant’s sister, and from Dr White, a psychologist who examined the Applicant and furnished a report to the delegate. His written report was in evidence before us.
The delegate was required to apply Direction 79, which was issued under s 499 of the Act. Similarly, on its review, The Tribunal must apply the Direction.
STATEMENT OF CONCLUSION AND PROPOSED ORDERS
Re-exercising the discretion in accordance with Direction 79, I would set aside the delegate’s decision. I would substitute a decision that the visa cancellation decision should be revoked. My reasons follow.
I note the tight timeline in this matter. As matters panned out, the decision and reasons in this matter had to be delivered within 12 calendar days of the hearing: otherwise, the decision under review would have been taken to be affirmed. Neither party provided us with detailed submissions concerning the source and scope of Australia’s non-refoulement obligations, which is a matter referred to in the Direction, at the time of the hearing. It was not practicable to seek such submissions from the parties given the time constraints; but the Tribunal did invite from the parties a short statement of their position. I deal with the question of these obligations and their interrelationship with the Direction in some detail at the end of these reasons, although in the event they have not proved decisive.
BACKGROUND FACTS
The essential facts are as follows. The Applicant was born in 1990 in Iran. His parents left Afghanistan for Iran after many of the Applicant’s relatives had been killed in the violence that has periodically broken out across that country. In Iran, the applicant and his family were apparently subject to regular discrimination, harassment, and they lived poorly. The family migrated to Australia in October 2011 under the Special Humanitarian Program (Subclass 202) visa and under the sponsorship of one of the Applicant’s family. The Applicant was 21 years old at the time of his arrival some eight years ago. The Applicant most recently held a resident return visa.

I note that “Impact on business interests” is not relevant here. The fifth of these considerations is of particular importance in my opinion and I shall deal with it first.
Extent of Impediments if removed
I think the Tribunal must assume that the Applicant will be deported to Afghanistan if the visa cancellation decision is not revoked. The Respondent’s submission to the Tribunal, as noted above, was that ss 197C and 198 of the Act require the removal from Australia of the Applicant, as an unlawful non-citizen without a visa, as soon as reasonably practicable and irrespective of any non-refoulement obligations Australia may owe. I have accepted that submission.
I think it is necessary for the Tribunal, in the absence of any information from the Respondent to the contrary, to assume that this statutory obligation will be fulfilled in what appears to be the only way it can be fulfilled at the present time; namely, that the Applicant will be deported to the country of his nationality, Afghanistan. We were not informed that the Applicant would enjoy any prospect of being sent to another country. Since the statutory obligation under ss 197C and 198 is to effect removal as soon as reasonably practicable, I do not think I can assume that the Applicant will have any right to remain, for example, in immigration detention for any extended period of time; nor does the Minister have the power, even with the Applicant’s consent, to keep the Applicant in immigration detention for any period of time beyond that which is consistent with the Applicant’s removal “as soon as is reasonably practicable” in conformity with the Minister’s statutory duty.
On the assumption that the Applicant will be removed to Afghanistan, there are, in my opinion very significant impediments to him. We were furnished at the hearing by the respondent with the DFAT country information report in relation to Afghanistan dated 27 June 2019. That document is of particular importance and relevance in outlining the considerable challenges that Hazara Shi’a face in Afghanistan. I note that I must give it appropriate weight: para 8(2).
DFAT Report
The Report comments on the difficulties in the political situation in Afghanistan at the present time. I note that at [2.52], for example, the Report indicates that the security situation in Afghanistan “is dangerous complex and highly fluid”. There is a reference to a number of what are called “anti-government elements” (AGEs) engaging “in a violent armed insurgency against the government and its international partners”. There is reference also to a growing concern in respect of ISKP, an Islamic state affiliate in pockets of eastern Afghanistan. I note that international and domestic observers agree “the security situation in Afghanistan has deteriorated considerably in recent years. The report gives the survey that over 70% of Afghans reported feeling fearful of their personal security I note the reference in para [2.54] to large-scale Taliban attacks in the Hazara-dominated Western areas of DASD province.
The ISKP is reported as having formally launched its Afghanistan operations in January 2015 [2.57]. It has expanded its presence to some 30 districts across the country and has specifically targeted the Shi’a community. I note that the report shows that in 2018 there was a considerable increase in civilian casualties caused by suicide attacks by AGEs. The report notes that a particular concern is the number of casualties from attacks by AGEs deliberately targeting civilians, mostly in the form of suicide attacks [2.61]. Civilian casualties caused by the Taliban doubled in 2018 (over 2017 figures) and attacks from ISKP caused more than twice the number of civilian casualties in 2018 (over 2017 figures). In that connection it is noteworthy that the ISKP attacks were “mainly suicide and complex attacks including sectarian-motivated attacks against Shi’a” [2.61].
I note that the capital of Afghanistan, Kabul, is said to remain a particularly significant target for suicide and complex attacks against both civilian and non-civilian targets [2.64]. It is said that violent attacks within the city are “common” [2.64].
The report notes in [2.75] that “conflict-related abductions” occur. Anti-government elements are reported to kidnap civilians based both on suspicions that they have connections to or work for the government, amongst other reasons [2.75]. So far as the Applicant is concerned. the Report notes that the Hazara are widely perceived to be supporters of the government and so the risk profile described in respect of people associated with the government or international community is said to be applicable to Hazara [3.16].
The report deals specifically with Hazara, Shi’a, and people associated with the Government or international community separately. So far as Hazara are concerned, the report notes that the community has long faced social, economic, and political discrimination [3.8]. At [3.9] the report notes that the Hazara’s previous experience of life under the Taliban marked a considerable period of hardship for the Hazara and have caused many to feel particular concern about the long term prospects for the community. Many Hazara decided to leave Afghanistan as did the Applicant’s family when it moved to Iran. In my opinion, whilst it is true to say that there are some provinces which are safer than others, it is of real concern that so many provinces in the country are listed as unsafe in the Report. In this connection I refer to [3.11].
International observers have reported cases of extortion, forced recruitment, and forced labour, physical abuse, and detention inflicted as a form of societal discrimination against Hazara [3.15] although DFAT expressly says it not able to comment on the veracity of that report.
The overwhelming majority of Hazara are Shi’a (as is the Applicant) and so the profile in respect of Shi’a is also relevant. At [3.35] DFAT “assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups for attack based on their religious affiliation when assembling in large and identifiable groups such as during demonstrations or when attending mosques to rewrite major religious festivals.” The risk is said to be greater for those living in major cities such as Kabul.
As I earlier indicated, the DFAT report notes that the security profile for people associated with the government or international community also applies to Hazara because they are perceived to support the government. At [3.42] it is noted that “insurgent and terrorist groups particularly the Taliban have openly targeted Afghans of all ethnicities working for supporting or associated with the government”. Such people are noted to be often subject to intimidation, threats, abduction, and targeted killings. Attacks occur throughout Afghanistan but are to particularly prevalent in Kabul.
At [3.43], the report notes that most civilian casualties result from suicide and complex attacks carried out in civilian-populated areas where they “often cause high numbers of casualties among innocent bystanders”. At [3.44] it is said that 2018 saw a rise in civilian casualties resulting from the targeting of the government, administration, aid workers and staff working for NGOs and a significant “spike” in civilian casualties.
At [3.46] DFAT “assesses that people working for, supporting, or associated with the government and/or the international community (or perceived to be doing so) face a high risk of violence perpetrated by AGEs, particularly the Taliban” It is further said that “given the methods of attack used are often highly indiscriminate in nature this risk applies whether or not the person is the specific target of the attack was a lower-level employee of the organisation in question”.
It is also relevant in my opinion that DFAT concludes that state protection is limited in the circumstances. At [5.2], for example, it is reported that “the continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, particularly outside major urban centres”. The Report goes on to note that “the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the government’s ability to protect its citizens even where its security infrastructure is strongest”.
This overview of the security situation in Afghanistan suggests that the Applicant, as a Shi’a of Hazara ethnicity, faces a very high risk of violence which the Government is not able to control effectively.
Overall, the DFAT report indicates that features of the environment constitute a very serious impediment to the Applicant’s deportation to it. In addition, I would take into account the fact that the Applicant has never lived in Afghanistan. He has no family in Afghanistan. He would have no-one to assist him, therefore, to navigate, so to speak, the very serious security risks and to avoid particularly dangerous situations.
In this connection, I think it is particularly important to bear in mind the report of Dr White that refers to the Applicant’s very low IQ and Intellectual disability. This was not disputed at the hearing before us. It is of real concern that the Applicant has such a low IQ. Dr White suggested in his report[42] that the Applicant was in the intellectual disability range of intelligence and around the bottom 1% of the age equivalent population. The conclusion was that his general problem-solving skills were very poor and equivalent to those of an average seven-year-old child. Dr White indicated in his report that his current assessment indicated that the Applicant’s intellectual skills were very limited.
[42] “G” Documents, at page 174.
From such a low IQ, I would infer that the Applicant would face an additional obstacle, namely, that he would not be able to plan to tackle the adverse security situation he would face immediately on his arrival in Afghanistan. He would be, in my opinion, at a heightened risk of disadvantage because of his very low IQ. When this is combined with the lack of social support, and family or friends in Afghanistan and his own lack of knowledge about Afghanistan (having grown up in Iran), the risk of very serious harm to the Applicant is heightened considerably.
I have relied considerably on the DFAT report as an independent and objective assessment of the impediments as the Direction requires; but it is consistent with the statutory declaration material that was before the delegate. The Applicant made a statutory declaration while in jail to support his application.[43] At paragraph [22]ff, he records what he understands to have happened to his family and the persecution they faced in Afghanistan. Given his very low IQ, the statutory declaration is drafted in simple terms, and this was appropriate in the sense that it could not be expected, in my opinion, that a statutory declaration in the Applicant’s own words would be particularly elaborate.
[43] “G” Documents at pages 65-69.
Despite its simplicity, however, the declaration raises squarely assertions that the Applicant’s father and his father’s family by another wife (i.e., other than the Applicant’s mother) suffered grievously in Afghanistan and were effectively forced to flee. There is a reference to the father losing property through extortion and violence. There is reported to be a fear of being killed by the Taliban or other insurgent groups targeting Hazara people. His suggestions that because of his accent (as he grew up in Iran) he will be readily distinguishable from locals, that he would be at risk because he would not “fit into society” and “would not know where to go or how to avoid persecution” seem plausible in the circumstances. They were not challenged by Ms Butler.
Applicant’s ties
I turn now to consider the Applicant’s ties. So far as the strength of ties is concerned, some weight should be attached in my opinion to the fact that the Applicant is a member of a close-knit family group. I do accept the evidence of the Applicant that he has a particularly good relationship with his father and has looked after his father. I attach some weight to this factor.
Impact on Victims
So far as the impact on victims is concerned, there is no evidence before the Tribunal that the victims of the home invasion have a particular fear about the applicant remaining in the country or indeed necessarily have any view about it at all. It is not something therefore I believe I can weigh up.
The question of the non-refoulement obligations is one that also needs in my opinion to be considered as part of the other considerations that are to be weighed.
Weighing of factors
Before doing so, however, I conclude that whether or not there are non-refoulement obligations, the other factors I have identified in this case outweigh the primary considerations that I have identified. It is for this reason that I noted at the outset that the non-refoulement considerations are not decisive.
I appreciate that the Tribunal must weigh the considerations carefully and I re-iterate that “generally” primary considerations should outweigh other considerations; but, as I have said, recent authority makes it clear that “other” considerations are not secondary considerations as such and in an appropriate case other considerations may be compelling.
I note that I have taken into consideration Ms Butler’s answer to a question from the Tribunal that the Minister did not maintain the Applicant’s offending in this case was at a level where in and of itself the serious of the offending had to prevail over all other factors. This meant in her submission that the weighing up process did need to be conducted. I act on that basis,
Although I fully accept that in normal circumstances the offending that is before the Tribunal would result in a confirmation of the decision to cancel the applicant’s visa, there are highly unusual circumstances which prevail in Afghanistan. I think the adverse risk for this Applicant given his circumstances is very high indeed, as I have indicated. I have already referred to the fact that there are heightened risk factors arising from the Applicant’s lack of any social support, family connection, or indeed history of having lived in Afghanistan himself.
I also attach very considerable weight to the Applicant’s very low IQ. It is a very serious matter to deport to a country as dangerous as Afghanistan such a person when he belongs to a targeted minority.
I have also weighed up the nature of the offending in this case. I accept that it was very violent and accordingly very serious. On the other hand, the offending was confined to a particular relationship, and was not indiscriminate although the violence spilled out and was perpetrated against the former sister-in-law in the home invasion where she happened to be present.
I also accept that there is a “moderately high risk” of the applicant reoffending and that he is presently therefore a danger to the Australian community; but I am encouraged by the psychological report that has indicated that a man of such low IQ and with such poor English skills could have made any progress at all in rehabilitation. I think credit must be given to the Applicant in this regard. I note again that Dr White indicates that the applicant “has probably exceeded my expectations of his capacity to engage in rehabilitation”. Dr White indicated that appropriate programs that take account of the Applicant’s very low IQ are more likely to be available outside the prison system. I also take into account that he belongs to a tightknit family where there is at the very least reasonable prospects of appropriate support to assist his rehabilitation.
When I consider and weigh up all these factors together, I am clearly of the view that this is one of the cases where the other factors for this Applicant (and I would emphasise “this” Applicant) outweigh the primary considerations.
NON-REFOULEMENT OBLIGATIONS
Although I have decided the application on other grounds, I set out my consideration of the non-refoulement obligations in some detail. Clause 14 of Direction 79 refers to Australia’s non-refoulement obligations (arising under in international law). They are a matter that the Direction says must be taken into account, although cl 14.1(4) specifies that it is unnecessary to take them into account where a valid application for another visa may be made.
The obligations are defined non-exhaustively in section 5 of the Act as follows:
“non-refoulement obligations" includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).”
(i) Convention Relating to the Status of Refugees
Article 33(1) of the 1951 Convention Relating to the Status of Refugees[44] (“CRSR”), which is referred to in paragraph (a)(i) of the definition in s 5 quoted above, is in the following terms:-
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”
[44] Together with the 1967 Protocol.
Article 33(2) provides, however, as follows:-
“The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he [or she] is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
My conclusion is that the Applicant does not benefit from any international non-refoulement obligation arising under the CRSR because of Article 33(2); that is, because he has been convicted in Australia of a particularly serious crime (as defined in municipal law) and he constitutes a danger to the Australian community. We note the Act uses the same terminology to set the jurisdictional threshold for the grant of a protection visa as appears in Article 33(2).
(ii) Other Treaties
Australia has non-refoulement obligations that arise under other treaties and also under customary international law. So far as other treaties are concerned, the Convention against Torture (“CAT”) and the International Covenant on Civil and Political Rights (“ICCPR”) are relevant and these are referred to in subparagraphs (a)(ii) and (iii) in the non-exhaustive definition in s 5 of the Act quoted above.
I note that in Brownlie’s Principles of Public International Law[45] the author makes the salient point that while a State’s discretion to expel aliens is largely an internal matter (i.e., one for the State’s municipal law), the discretion in this regard is not unlimited from an international law perspective. It must be exercised in a way that is compatible with the obligation not to “expel an alien to a state where his or [her] life would be threatened or he or she may be subjected to torture or to cruel, inhuman, and degrading treatment”.[46]
[45] J Crawford, Brownlie’s Principles of Public International Law, 9ed, 2019, OUP.
[46] Ibid at p 503.
This obligation exists in relation to non-refugees and refugees alike. It also applies to refugees who fall within Article 33(2) of the CRSR even though that Article denies them non-refoulement rights under that Convention because of their criminal behaviour. That is, non-refoulement rights arising under either the CAT or the ICCPR (as well as under customary international law) may not be derogated from: they are absolute.
In this connection, I would refer to the UNHCR’s 2007 Advisory Opinion,[47] which I have found to be very helpful in summarising the general position. Referring to Article 33(2) of the CRSR, the Opinion observes at [11]:
11. The provisions of Article 33(2) of the 1951 Convention do not affect the host State’s non-refoulement obligations under international human rights law, which permit no exceptions. Thus, the host State would be barred from removing a refugee if this would result in exposing him or her, for example, to a substantial risk of torture. Similar considerations apply with regard to the prohibition of refoulement to other forms of irreparable harm. (footnotes omitted)
[47] Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007. type="1">
Paragraphs [17] to [20] of the Opinion develop this position as follows:
17. Non-refoulement obligations complementing the obligations under the 1951 Convention, which preceded the major human rights treaties, have also been established under international human rights law. More specifically, States are bound not to transfer any individual to another country if this would result in exposing him or her to serious human rights violations, notably arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment.
18. An explicit non-refoulement provision is contained in Article 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits the removal of a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
19. Obligations under the 1966 Covenant on Civil and Political Rights, as interpreted by the Human Rights Committee, also encompass the obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading treatment or punishment] of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The prohibition of refoulement to a risk of serious human rights violations, particularly torture and other forms of ill-treatment, is also firmly established under regional human rights treaties.
20. The prohibition of refoulement to a country where the person concerned would face a real risk of irreparable harm such as violations of the right to life or the right to be free from torture or cruel, inhuman or degrading treatment or punishment extends to all persons who may be within a State’s territory or subject to its jurisdiction, including asylum seekers and refugees, and applies with regard to the country to which removal is to be effected or any other country to which the person may subsequently be removed. It is non-derogable and applies in all circumstances, including in the context of measures to combat terrorism and during times of armed conflict. (footnotes omitted)
(iii) Customary International Law
Customary law also prohibits refoulement in certain circumstances and this is explained in the Advisory Opinion at [21]-[22] as follows:
21. The prohibition of torture is also part of customary international law, which has attained the rank of a peremptory norm of international law, or jus cogens. It includes, as a fundamental and inherent component, the prohibition of refoulement to a risk of torture, and thus imposes an absolute ban on any form of forcible return to a danger of torture which is binding on all States, including those which have not become party to the relevant instruments. The prohibition of arbitrary deprivation of life, which also includes an inherent obligation not to send any person to a country where there is a real risk that he or she may be exposed to such treatment, also forms part of customary international law. The prohibition of refoulement to a risk of cruel, inhuman or degrading treatment or punishment, as codified in universal as well as regional human rights treaties is in the process of becoming customary international law, at the very least at regional level.
22. Under the above-mentioned obligations, States have a duty to establish, prior to implementing any removal measure, that the person whom it intends to remove from their territory or jurisdiction would not be exposed to a danger of serious human rights violations such as those mentioned above. If such a risk exists, the State is precluded from forcibly removing the individual concerned. (footnotes omitted)
(iv) CAT, ICCPR and the State agency limitation
I note that so far as the CAT is concerned, the prohibition against torture applies only to torture committed by the State or its agencies.[48] How far the concepts of the State and its agencies extend may be open to question where insurgent group operate effectively as de facto rulers in parts of a country’s territory, as has been the case in Afghanistan. That is not a matter I need take further given the terms of the ICCPR.
[48] See GS Goodwin-Gill & J McAdam, The Refugee in International Law, (3ed), 2007, OUP at p 302.
So far as the ICCPR is concerned, I note that the protections given in Articles 6 and 7 against the arbitrary deprivation of life and torture, cruel, inhuman or degrading treatment or punishment are not limited to treatment inflicted by State agencies.[49] It follows that refoulement to a country where the deportee will face the real risk of this treatment at the hands of either a State group or a non-State group is not permitted by the ICCPR. This is the position taken by the Human Rights Committee as recorded in the Advisory Opinion that I have quoted above.
(v) Non-refoulement under the Act
[49] Ibid at 302-303.
The absolute prohibitions on refoulement arising under the CAT and the ICCPR and under customary international law are not reflected in the Act.
Rather, under section 36(1A)(a) of the Act, the threshold condition that applies in the case of the CSRS (and is supported by Article 33(2)) is also specified to apply to cases governed by the CAT and the ICCPR; namely, that the person must not have been convicted by final judgment of a particularly serious crime and must not be a danger to the community in the Minister’s view.
The result of the legal regime under the Act is that Parliament has directed that a protection visa must be refused to a person who has been convicted of a particularly serious crime and is considered to be a danger to the community in all circumstances, and not just in respect of cases that fall within Article 33(2) of the CRSR.
DIRECTION 79 and NON-REFOULEMENT OBLIGATIONS
Non-refoulement obligations are mentioned as a consideration that must be taken into account by para 14(1)(a). Clause 14 of the Direction also provides in this regard as follows:
14.1 International non-refoulement obligations
(1)   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 reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)   The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)   Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)   Where a non-citizen makes claims which may give rise to international non- refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)   If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)   In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
I note that in paras 14.1(2) and 14.1(6), there are references to Australia not returning a person to a country if to do so would be inconsistent with international non-refoulement obligations.
As a matter of construction, I believe the Direction was drafted on the assumption that non-refoulement obligations would prevent the removal of a person to a country where he faces a risk of, for example, death, torture or cruel or inhuman treatment or punishment. The Direction specifically says as much in para 14.1(6). Although that does not sit well with s 197C and 198 of the Act which require removal irrespective of non-refoulement obligations, that is the assumption of the Direction.
I also note that Clause 14.1(4) provides that it is not necessary for the delegate to consider non-refoulement obligations for the purposes of determining whether the cancellation of their visa should be revoked if a person “can make a valid application for another visa”.   That is the position the delegate took in this case.
I am conscious of the uncertainty in the Federal Court over this part of the Direction.[50] I do wish to express a view in the absence of clear and binding authority. The intention, in my opinion, appears to be that the Minister’s delegate need not consider non-refoulement obligations where an Applicant is eligible to apply for, and receive, a protection visa (provided he or she makes good a case of harm in the country to which he or she would be deported). The case of harm would be investigated and decided at that future time and if harm is demonstrated a visa would be granted.
[50] See the extensive discussion for example in GBV18 v. Minister for Home Affairs [2019] FCA 1132.
It is put in the delegate’s decision in this case and it was reiterated by Ms Butler that the Applicant in this case is “able to make a valid application” for a protection visa in this case.
I do not accept that submission. In this case, it is more accurate to say that while the Applicant is not prevented in law from making an application for a protection visa, if he does so and if the Minister forms the view on reasonable grounds that the Applicant is a danger to the Australian community, the Minister must refuse the application irrespective of the threat the Applicant would face in Afghanistan and irrespective of Australia's non refoulement obligations.   This follows from s 36.
I note in this connection that the delegate was clear that the Applicant was a danger to the Australian community. Indeed, that is a factor that weighed heavily in the delegate’s mind when he decided not to revoke the cancellation decision. I agree with that assessment, supported as it is by the nature of the serious offending and the expert opinion of Dr White that the Applicant poses a moderately high risk of reoffending in a violent way. I do not believe that a contrary view as to the danger the Applicant poses is realistically open.
In these circumstances, I conclude that were the Applicant to apply for a protection visa, it would inevitably have to be rejected in law, whatever the risk the Applicant would face in Afghanistan, because of the lack of a jurisdiction in the Minister to grant it under s 36. In this regard, I note that whether the Minister considers the Applicant is “a danger to the Australian community” is not a question that gives rise to a discretion− by that, I mean a free choice in the public interest. Rather, Parliament has specified a jurisdictional question of fact and degree. The Minister must address the question, and form the requisite opinion bona fide. If the Minister considers, bona fide and reasonably, that the Applicant is a danger to the Australian community, the Minister must refuse him a protection visa. The Minister may not simply choose to grant the Applicant a protection visa even though the Applicant is considered to be a danger to the Australian community. Parliament has circumscribed the Minister’s power in this regard.
I do not think it can be said, therefore, using the language of the Direction, that the Applicant in this case “can make a valid application for another visa”. Any such application may be technically “valid”, in the sense of not prohibited by the Act, but it would almost certainly be futile. That is not the sort of “valid application” the Direction is directed at in my opinion.
In this regard, it is also relevant to note that in the case of a cancelled protection visa, where the visa holder may not apply for another visa, the Direction requires the delegate to give careful consideration to Australia’s non-refoulement obligations: cl. 14.1(5) and (6). I would note that the Direction makes it clear in para 14.1(6) that where the person may not apply for a second protection visa, the decision-maker should seek an assessment of Australia’s international treaty obligations. The decision-maker is expected to engage with non-refoulement obligations at that point.
I think the same “careful consideration” was intended to apply in the case of an Applicant whose application for a protection visa will almost certainly be denied because of the nature of his or her offending and the assessment of his or her risk to the Australian community.
Accordingly, I think the Direction, properly construed, requires me in the circumstances of this case to weigh carefully Australia’s non-refoulement obligations, if they exist in the case of this Applicant, against the seriousness of the Applicant’s criminal offending.
Finally, I am mindful that I should not speculate about the outcome of a protection visa application. In my opinion, the situation is different, however, where it can be concluded without doubt that an essential qualification for a protection visa is lacking, as is the case here. In my opinion, clause 14.1(4) does not apply in the case of this Applicant.
In these circumstances, on the information before me, I think it is clear that Australia does have non-refoulement obligations in respect of the Applicant arising under the ICCPR and customary International Law and that this is a matter I am directed to take into account as provided for in the Direction.
Ms Butler advised the Tribunal after the hearing that it was open to the Tribunal to find the Applicant was owed non-refoulement obligations. My conclusion in this regard accords with that submission. The existence of these obligations further supports my conclusion that revocation of the visa cancellation decision is appropriate.
CONCLUSION
For these reasons, I conclude there is “another reason” to revoke the visa cancellation decision, and I would make the orders envisaged in [136] above to give effect to this conclusion.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

.........[Sgnd]...........................................
Associate
Dated: 12 November 2019

Dates of hearing: 30-31 October 2019

Representative for the Applicant Mr G Aitken on instructions from Mr M Simmons, MSM Migration & Legal

Representative for the Respondent Ms L Butler, Australian Government Solicitor

Dates of hearing:	30-31 October 2019
Representative for the Applicant	Mr G Aitken on instructions from Mr M Simmons, MSM Migration & Legal
Representative for the Respondent	Ms L Butler, Australian Government Solicitor