QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 226

QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 226 (4 February 2022)
Division:GENERAL DIVISION
File Number: 2019/5310
Re:QDWQ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Deputy President Dennis Cowdroy, AO QC
Senior Member Andrew Nikolic, AM CSC
Member Marten Kennedy
Date of decision: 4 February 2022
Date of Written Reasons: 16 February 2022
Place:Adelaide

On 4 February 2022, the Tribunal affirmed the decision under review. These are the written reasons for that decision.
................. .......[sgd]................................................

Senior Member Andrew Nikolic AM CSC

CATCHWORDS
MIGRATION
– citizen of Afghanistan – mandatory visa cancellation – Class BB Subclass 155 Five Year Resident Return visa – substantial criminal record –failure to pass the character test – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – other serious conduct – risk of reoffending – inconsistencies in evidence–insight and remorse–protection of the Australian community – best interests of children – family violence – expectations of the Australian community – non-refoulement obligations – impediments to removal – strength, nature and duration of ties – objection to exhibit taken into evidence after conclusion of hearing – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Parliamentary Privileges Act 1987 (Cth)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules
Legal Profession Uniform Conduct (Barrister’s) Rules 2015
CASES
Ali v Minister for Home Affairs (2020) 278 FCR 627
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 81 ALR 710
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CKX16 v Minister for Immigration & Anor (No 2) [2018] FCCA 2894
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
Fardon v Attorney-General (Qld) (2004) 223 CLR 575,
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4309 (19 November 2021)
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leyonhjelm v Hanson-Young (2021) 282 FCR 341
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Navoto v Minister for Home Affairs [2019] FCAFC 135
Negri v Secretary, Department of Social Services [2016] FCA 879
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Plaintiff M1/2021 v Minister for Home Affairs (High Court of Australia Action No M1/2021)
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
QDWQ and Minister for Home Affairs [2019] AATA 4622
Romanov v Minister for Home Affairs [2019] FCAFC 13
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
'Afghanistan crisis: Taliban kill civilians in resistance stronghold', BBC News (online, 14 September 2021)
‘Afghanistan: Rising unemployment in Afghanistan, people forced to sell goods on streets - The Economic Times (indiatimes.com)’ The Economic Times (online, 21 September 2021)
Amnesty International, 'Afghanistan: Taliban responsible for brutal massacre of Hazara men – new investigation', Amnesty International (Web Page, 19 August 2021)
Carlotta Gall, 'As the Taliban Tighten Their Grip, Fears of Retribution Grow', New York Times (online, 29 August 2021)
David Zucchino and Fahim Abed, 'Risking Death, Hazara Students Pursue Education at Bombed Academies', New York Times (online, 20 March 2021)
Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, DFAT Country Information Report: Afghanistan, Report (27 June 2019)
DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) dated 14 January 2022
Dr. Saleem Javed, 'Taliban’s ‘General Amnesty’ Does Not Apply To Afghanistan’s Defenceless Hazaras', Friday Times (Pakistan) (online, 04 September 2021)
International Labour Organisation, ‘Unemployment, total (% of total labor force) (modeled ILO estimate) - Afghanistan | Data (worldbank.org)’, World Bank (Web Page, 15 June 2021)
'Leader Of Taliban's New Afghan Regime Says Shari'a Law Will Govern All Aspects Of Life', Gandhara (Czech Republic) (online, 07 September 2021)
Margherita Stancati and Ehsanullah Amiri, 'Taliban Reach Out to Shiite Hazara Minority, Seeking Unity and Iran Ties', Wall Street Journal (online, 01 September 2021)
Rina Chandran, 'Afghans scramble to delete digital history, evade biometrics', Reuters (online, 17 August 2021)
'Taliban are rounding up Afghans on blacklist - private intel report', Reuters (online, 20 August 2021)
'Taliban would take back Europe's Afghan deportees to face courts, says spokesman', Reuters (online, 31 August 2021)
‘UNHCR Regional Bureau for Asia and Pacific (RBAP): Flash External Update: Afghanistan Situation #12, As of 15 December 2021 (two-week period) - Afghanistan | ReliefWeb’ ReliefWeb (Web Page, 22 December 2021)
'Victims’ families: Taliban committed war crimes in Malistan', Kabul Now (online, 26 July 2021)
Zabiullah Jhanmal, '8% Drop in Growth Predicted for Afghan Economy: Report', Tolo News (online, 28 July 2020)
REASONS FOR DECISION
The Hon. Deputy President Dennis Cowdroy, AO QC
Senior Member A. Nikolic AM CSC
Member Marten Kennedy
16 February 2022
INTRODUCTION

The Applicant seeks review of a decision made on 19 August 2019 by a delegate of the Respondent, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa.
The hearing was held in the Tribunal’s Adelaide Registry on 31 January, 1 and 2 February 2022. Parties appeared in person, but the Applicant’s two witnesses appeared via telephone. The Applicant was represented by Mr Mitchell Simmons, a solicitor from MSM Legal. The Minister was represented by Mr Henry Cooper of counsel, instructed by the Australian Government Solicitor. The Applicant and his two witnesses were assisted by an interpreter in the Farsi language.
For the following reasons, the Tribunal affirms the reviewable decision.
FACTS
The Applicant is 31-year-old Shi’a Muslim of Hazara ethnicity. He was born and raised in Iran but is a citizen of Afghanistan by virtue of his parents’ nationality.[1] He has never lived in Afghanistan. The Applicant’s parents and four siblings, of whom he is the second youngest, live in Australia.[2] A chronology of the Applicant’s history in Australia follows.
[1] Exhibit R1, 88.
[2] Ibid.
(a)29 October 2011: The Applicant arrived under a Class XB Subclass 202 Global Special Humanitarian Visa sponsored by his aunt. He was 21 years old and has not departed Australia since;[3]
[3] Ibid 120.
(b)2012: Soon after arriving in Australia the Applicant met a woman from Afghanistan at a college where both undertook English studies.[4] They married on 3 November 2012 in an Islamic cultural ceremony organised by their parents.[5]
[4] Ibid 933 [5]-[10].
[5] Ibid 513; 647; 796 [14].
(c)A summary of the Applicant’s offending,[6] other serious conduct, visa history, and appeal history follows:
[6] Ibid 34-35.
(i)7 November 2013: The Applicant assaulted his then wife (“initial family violence”), which resulted in him being arrested, charged, and bailed.[7] The couple separated[8] and a Police Interim Intervention Order (“PIIO”) was taken out to protect her;[9]
[7] Ibid 415.
[8] Ibid 780 [10.b.].
[9] Ibid 37; 587-590; 607.
(ii)12 November 2013: The Applicant breached the PIIO by confronting his ex-wife at her parents’ home. He intentionally cut his arm at the scene and falsely claimed to police his ex-wife’s brothers forced his arms behind his back, cut his forearms with a razor blade or knife, and may have placed his blood at the scene to incriminate him;[10]
[10] Ibid 296.
(iii)27 January 2014: The Applicant again breached the PIIO and conditions of his bail when he broke into his ex-partner’s home carrying a knife and rope.[11] He cut through a flyscreen with a knife, entered the home through a window, threatened to kill his ex-partner because she refused to withdraw a police complaint against him, put a rope around her neck, choked her with the rope until she had difficulty breathing, pushed her to the ground, tried to undress her, and threatened to hurt her sister who tried to intervene.[12] The Applicant was arrested, charged, and placed on remand. He falsely claimed to police he was not even present during this offending and arranged for at least one of his siblings and a friend to give false alibi evidence.[13] He was subsequently placed on home detention bail and committed for trial.[14]
[11] Ibid 314.
[12] Ibid 315.
[13] Ibid 37.
[14] Ibid 330.
(iv)1 October 2014: The Applicant pleaded guilty to the initial family violence in the Elizabeth Magistrates’ Court. A conviction was not recorded, and he was placed on a bond to be of good behaviour for six months.[15] There is no reference in the Magistrate’s remarks to the more serious violence that occurred on 27 January 2014. The District Court of South Australia noted it is unclear whether the sentencing magistrate was aware of this.[16]
[15] Ibid 768-769; 764-766.
[16] Ibid 37.
(v)2015 to 2017: The Applicant worked for a time as a truck driver and forklift operator.[17]
[17] Ibid, 84; 95.
(vi)4 December 2015: The Applicant was convicted for failing to comply with his home detention bail conditions and discharged without penalty.[18]
[18] Ibid 775.
(vii)15 November 2016: The Applicant was granted the visa cancelled in this matter.[19]
[19] Ibid, 45; 114.
(viii)18 April 2017: Following a jury trial, during which alibi evidence provided by two of the Applicant’s sisters and a friend was rejected, the Applicant was convicted of several violent offences arising from the January 2014 incident. In relation to his ex-wife, he was convicted of: ‘serious criminal trespass – residence unoccupied (aggravated offence), threaten to cause harm to another (aggravated offence),’ and ‘threaten to kill or endanger life (aggravated offence).’ He received a head sentence of five years’ imprisonment.[20] In relation to his ex-wife’s sister, he was convicted of ‘threaten to cause harm to another (aggravated offence)’, for which he was sentenced to 18 months’ imprisonment to be served concurrently.[21] The Applicant has remained in custody since 18 April 2017[22] and his appeals against these convictions and sentences were dismissed by the Supreme Court of South Australia.[23]
[20] Ibid 34; 41.
[21] Ibid 34.
[22] Ibid 110.
[23] Ibid 326-327.
(ix)29 August 2017. The Applicant was convicted of contravening the terms of the PIIO and failing to comply with his bail, for which he was discharged without penalty.[24]
[24] Ibid 34.
(d)17 May 2018: The Applicant’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”);[25]
[25] Ibid 114-119.
(e)June 2018; March 2019: The Applicant made representations through his solicitor about why the cancellation decision should be revoked;[26]
[26] Ibid 49-109; 160-182.
(f)19 August 2019: A delegate of the Minister decided under s 501(CA)(4) of the Act not to revoke the cancellation decision (“non-revocation decision”);[27]
[27] Ibid 11.
(g)28 August 2019: The Applicant sought review of the non-revocation decision;[28]
(h)12 November 2019: The Tribunal, differently constituted, affirmed the non-revocation decision.[29] The Tribunal’s two-member panel differed about the outcome, which was resolved according to the opinion of the presiding member;[30]
(i)7 August 2020: The Applicant’s judicial review application in the Federal Court of Australia was allowed by Charlesworth J.[31] Her Honour upheld the first ground of appeal in finding that the Tribunal’s decision was materially affected by failing to consider the executive dimension of Australia’s international non-refoulement obligations. Her Honour stated that the Tribunal:
‘…failed to grapple with and decide the question of whether breach by Australia of its international law obligation was a reason to revoke the cancellation decision in the discretionary exercise of the power conferred by s 501CA(4). The Tribunal avoided the question because it assumed (erroneously) that a breach by Australia of its international law obligations might be avoided by the decision-maker on a future protection visa application, such that the applicant would be in no worse position than he otherwise would be if the Tribunal decided for itself the existence of the obligation and the consequences for Australia of its breach.’[32]
(j)23 August 2021: The Minister’s appeal to the Full Court of the Federal Court against Charlesworth J’s judgement was dismissed;[33]
(k)20 September 2021: The Minister filed a special leave application in the High Court, which has been stood over pending delivery of judgment in a special case: Plaintiff M1/2021 v Minister for Home Affairs (Action No M1/2021);
(l)18 November 2021: The Applicant filed an interlocutory application with the Federal Court asking that the Tribunal re-hear his application in compliance with Charlesworth J’s orders, and that it did so within 42 days of relief being granted;
(m)16 December 2021: Charlesworth J noted that neither an appeal to the Full Court nor an application for special leave to the High Court operated as a stay of execution of her earlier Orders or the Orders of the Full Court (respectively).[34] Her Honour further noted that neither the Respondent nor the Tribunal had applied for a stay of the Orders of the Full Court[35]. Her Honour found that the principles that might guide the discretion of the court to grant a stay of its orders therefore had no direct application,[36] and the orders of the Full Court did not include a discretion to delay the completion of its review function until the High Court proceeding was determined[37]. Her Honour held and ordered that her August 2020 orders remained operative and were to be implemented within 42 days. This was not opposed by the Respondent.[38] Her Honour ordered that:
On or before 4 February 2022, the second respondent is to make a return to the Court in relation to the order in paragraph 3 of the orders made on 7 August 2020 as if a writ of mandamus had issued which required the second respondent to determine the application for review of the decision of the delegate of the first respondent dated 19 August 2019 in accordance with the law, or show cause as to why it has not been done.[39]
(n)20 December 2021: A Case Management Telephone Directions Hearing (“CMTDH”) was convened prior to Christmas, to agree hearing dates and abbreviated scheduling orders to comply with Her Honour’s ruling.
[28] Ibid 1.
[29] QDWQ and Minister for Home Affairs [2019] AATA 4622.
[30] Administrative Appeals Tribunal Act 1975 (Cth), s 42(2).
[31] FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124.
[32] Ibid [56].
[33] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv FAK19 [2021] FCAFC 153.
[34]FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571 at [43].
[35] Ibid [44].
[36] Ibid [44].
[37] Ibid [47].
[38] Ibid [10].
[39] Ibid.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Ministerial Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”). The Direction must be applied by all decision-makers (except for the Minister acting personally).[40]
[40] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).

The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[41]
[41] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ The weighing process, however, is left to individual decision-makers.[42]
[42] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
ISSUE TO BE RESOLVED
By virtue of his five-year sentence of imprisonment on 18 April 2017, the Tribunal finds the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation.
The term ‘another reason’ has been examined in numerous decisions of the Full Court of the Federal Court of Australia (“FCAFC”).[43] Principles applying to the review of decisions under s 501CA(4) of the Act have recently been expressed by the FCAFC in Bettencourt.[44] This requires ‘active intellectual consideration’ of an Applicant’s clearly articulated representations.[45] Their Honours cited the Court’s reasoning in Viane[46] about how the existence of ‘another reason’ is determined:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[43] See for example Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [32]; Navoto v Minister for Home Affairs [2019] FCAFC 135 [95]-[100]; Romanov v Minister for Home Affairs [2019] FCAFC 13 [12].
[44] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, [27] (Burley, Colvin, and Jackson JJ).
[45] See also: Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, [3].
[46] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
Documentary evidence
The following documents were tendered into evidence without objection:
(a)A Remittal Bundle of documents lodged by the Respondent numbering 1124 pages;[47]
[47] Exhibit R1.
(b)DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) dated 14 January 2022;[48]
[48] Exhibit R2.
(c)Respondent’s summons bundle numbering 259 pages;[49]
[49] Exhibit R3.
(d)Applicant’s 12-page statement dated 13 January 2022, three-page statement dated 25 January 2022, and undated photocopy of a card sent to one of his sisters;[50]
[50] Exhibit A1.
(e)Five-page statement of the Applicant’s sister dated 12 January 2022 and her two-page Statutory Declaration dated 7 January 2021;[51]
[51] Exhibit A2.
(f)Two-page statement of another of the Applicant’s sisters dated 25 January 2022;[52]
[52] Exhibit A3.
(g)One-page joint Statutory Declaration of the Applicant’s parents dated 7 January 2021;[53]
[53] Exhibit A4.
(h)One-page joint letter signed by two of the Applicant’s adult nieces dated 20 January 2021;[54]
[54] Exhibit A5.
(i)One page statement of a business owner and friend of the Applicant dated 21 January 2021;[55]
[55] Exhibit A6.
(j)One-page letter from a neighbour of the Applicant’s parents dated 8 January 2021;[56]
[56] Exhibit A7.
(k)One-page letter from a shop owner and friend of the Applicant’s family dated 12 January 2021;[57]
[57] Exhibit A8.
(l)One page letter from Chairperson of the Afghan United Association dated 11 January 2021;[58]
[58] Exhibit A9.
(m)Letter from Supporting Survivors of Trauma and Torture (“STTARS”) dated 8 May 2018;[59]
[59] Exhibit A10
(n)One-page letter from the Fatima Zahra Mosque dated 24 January 2021;[60]
[60] Exhibit A11.
(o)One page letter from Community Access and Services SA dated 15 February 2021;[61]
[61] Exhibit A12.
(p)Two letters from the Australian Migrant Resource Centre, one dated 8 January 2021 and the other undated;[62]
[62] Exhibit A13.
(q)Letter from Resthaven Incorporated dated 23 December 2020 regarding the Applicant’s father;[63]
(r)Statements of attainment and participation for the Applicant’s completion of: a Certificate 1 in Initial Adult Literacy and Numeracy; Licences to perform high risk work, OH&S Construction Induction card; completion of a Food Safety Program; Certificate III in Driving Operations resulting in the award of a Medium Rigid vehicle licence; and Certificate of appreciation for the Applicant’s participation in a charitable fundraising event (Movember);[64]
(s)Royal Adelaide Hospital Operation Records dated July 2021, Modbury Hospital Separation Summary, and medications list regarding the Applicant’s father;[65]
(t)Report of psychiatrist Dr Vani Kaler dated 6 August 2021 regarding the Applicant’s mother;[66]
(u)Two letters from general practitioner Dr Saad Jaber dated 22 December 2020 regarding the Applicant’s parents;[67]
(v)Safety Plan workbook dated 13 March 2018 from the Applicant’s participation in a domestic violence program;[68]
(w)Responses to questions on notice from Federal Parliament’s Legal and Constitutional Affairs Committee during 2020-2021 Additional Estimates;[69]
(x)Emails relating to the Applicant’s attempts to transfer prisons dated between 12 July 2021 and 24 August 2021, and a letter from the Royal Adelaide Hospital dated 13 July 2021;[70]
(y)Document titled ‘Request Checklist and Details’ from the Department of Home Affairs, attached to which are the Applicant’s submissions from Australian Migration Options dated 12 February 2021, and Record of Interview between Applicant and his Migration Agent dated 30 December 2020;[71] and
(z)Emails dated between 24 June 2020 and 22 December 2020 regarding the Applicant’s FOI request.[72]
[63] Exhibit A14.
[64] Exhibit A15.
[65] Exhibit A16.
[66] Exhibit A17.
[67] Exhibit A18.
[68] Exhibit A19.
[69] MFI A20.
[70] Exhibit A21.
[71] Exhibit A22.
[72] Exhibit A23.
Late Objection to Exhibit A20
At 09:50 am on 3 February 2022, the Tribunal wrote to the parties seeking endorsement of the Exhibit list determined at the hearing. At 01:35 pm on 3 February 2022, the Respondent emailed the Tribunal objecting to the then Exhibit A20. This document, now referred to as ‘Marked for Identification MFI A20’, comprised 12 pages of Questions on Notice from the 2020-2021 Senate Additional Estimates, during the Legal and Constitutional Affairs Committee’s questioning of the Home Affairs Portfolio. The questions asked and the answers provided related to immigration detention. The Respondent’s objection was expressed as follows:
The Minister is concerned that tendering Exhibit A20 would breach s 16(3)(c) of the Parliamentary Privileges Act 1987. That document records responses to questions on notice given before a Parliamentary Committee. The applicant relies on the truth of those responses, or invites the Tribunal to draw inferences or conclusions from the proceedings in Parliament. If the Tribunal were to have regard to this material, it may breach Parliamentary Privilege and fall into error. On that basis, the Minister objects to A20 being tendered.
Mr Simmons for the Applicant replied by email at 04:38 pm on 3 February 2020:
My primary concern is that this issue has only arisen after the hearing despite this material first being lodged on 13 January 2022. I also note that I have previously relied on this material in an earlier matter within this division without any objection being raised by the Minister. The applicant is now prevented by the 2 day rule from lodging any other material that could confirm the nature of the submissions made at [46] of the applicant’s SFIC, such as could have been obtained through a FOI request with the Department...
The Tribunal convened a CMTDH at 10:00 am on 4 February 2022 to consider this issue. After hearing from both parties, the Tribunal decided that MFI A20 should be removed from evidence, because the Applicant’s intended reliance on it was for an impermissible purpose under s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth) (“PPA”). The Tribunal gave ex tempore reasons and undertook to incorporate these in the written reasons for the substantive matter. These now follow, consistent with the reasoning of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:
...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
The Tribunal would have been assisted by submissions from the parties during the hearing about possible implications arising from s 16(3)(c) of the PPA. This assistance is reasonably expected under s 19(6) of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules and s 29 of the Legal Profession Uniform Conduct (Barrister’s) Rules 2015. Having heard from the parties at the CMTDH, however, the Tribunal accepts the implications arising from s 16(3)(c) of the PPA was not apparent to either side when MFI A20 entered evidence without objection. That said, consent of the parties does not trump statute. The Applicant’s intended purpose in tendering MFI A20 is for the Tribunal to draw inferences regarding the Applicant’s prospects of being detained for a prolonged or indefinite period. This would be unlawful under s 16(3)(c) of the PPA, which provides:
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) …;
(b) …; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
Relevantly, s 16(2) of the PPA defines the term ‘proceedings in Parliament’ broadly, which encompasses material published on Hansard or is otherwise publicly available. If it was only intended that MFI A20 be used as a historical record to show something occurred in Parliament, then such use is permissible. The intended purpose here, however, is expressly prohibited under s 16(3)(c) of the PPA.[73] MF1 therefore forms no part of the Tribunal’s consideration of this matter consistent with an Order of the Tribunal dated 4 February 2022.
[73] Leyonhjelm v Hanson-Young (2021) 282 FCR 341, [43] [247-248]; Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 81 ALR 710, [718]; British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123, [49].
Applicant’s evidence
The Applicant adopted his written statements dated 13 January 2022 and 25 January 2022 as true and correct. The Tribunal has also considered his previous statement in evidence dated 11 October 2019 and oral testimony at the first hearing.[74] The Applicant’s oral evidence occupied the first two days of the hearing and the morning of the third day.
[74] Exhibit R1, 793-798; 921-955.
Life prior to arrival in Australia
The Applicant said he was born in Iran, has never been to Afghanistan, and neither he nor his family communicate with anyone in Afghanistan. He referred to five years of education while living in Iran at a school for Afghan refugees.
Life in Australia
The Applicant arrived in Australia at the age of 21 and undertook a year of English studies. He has truck and forklift licences and provided certificates showing he has completed a Certificate 1 in Initial Adult Literacy and Numeracy, Certificate III in Driving Operations, and a four-day Food Safety Program. He also holds a licence to perform high risk work in the construction industry.
The Applicant said he met a woman soon after arriving in Australia and they married within approximately six months in an Islamic ceremony arranged by their families. He was unemployed at this time, which caused financial strain and arguments.[75] The Applicant agreed he committed family violence against his ex-wife in November 2013, which was approximately three months after their marriage. His ex-wife separated from him and the Applicant agrees he initiated a confrontation at her parents’ home six days later. He then committed more serious family violence on 27 January 2014. The Applicant recalled that after his imprisonment, a Muslim Imam wrote to him in 2017 to advise that his wife’s request for a divorce under Sharia Law was approved.
[75] Ibid 936 [29].
The Applicant said his closest relationships in Australia are with his parents and siblings. He last physically saw his family members two years ago due to COVID-19 restrictions but communicates with them frequently by telephone and mail. The Applicant’s youngest sister lives with their parents who are ageing and unwell. She provides them with daily practical assistance, which the Applicant said he used to assist with prior to imprisonment. He said all but one of his siblings live nearby, but claimed they are occupied ‘seven days a week’ with their own lives and ‘nobody’ except for his younger sister helps their parents. The Applicant said he speaks frequently by telephone with his parents, siblings, nieces, and nephews. A summary of evidence about his siblings and their children follows.
The Applicant claimed:
(a)Brother (Mr Q): The Applicant’s only brother, who the Tribunal will refer to as Mr Q, is 36 years of age and operates a tiling business.[76] He contributes financially to their parents’ rental and utilities expenses. The Applicant claimed Mr Q is unable to provide any practical support because he is too busy with work;
(b)Sister (Ms F): The Applicant’s youngest sister, who the Tribunal will refer to as Ms F, is 28 years of age, unmarried, has no children, and is their parents’ principal source of support. This includes assistance with medication, feeding, showering and daily chores. The Applicant said his release would alleviate pressure on Ms F and enable her to progress her studies. He could not recall what Ms F is studying.
(c)Sister (Ms P): Another of the Applicant’s sisters, who the Tribunal will refer to as Ms P, is 34 and lives interstate with her husband and their six-year-old child.
(d)Sister (Ms M): The Applicant’s second oldest sister, who the Tribunal will refer to as Ms M, is 39 years of age, married, and has two children under five. The Applicant said he has never met the youngest child but recalls the older child was starting to walk when they were last together in 2017. If released he wants to build a ‘lovely relationship’ with these children by being a ‘role model’ and teaching them ‘what to do and what not to do’;
(e)Sister (Ms Z): The Applicant’s eldest sister is 42, unmarried, and has two adult female children. The Applicant said Ms Z’s husband died while they were living in Iran and the Applicant has a close relationship with her and his two nieces. He used to buy presents for his nieces, help with school costs, and ‘provide for them as an uncle’. Because of imprisonment he regrets not being able to teach them to drive or contribute financially towards their needs.
[76] Ibid 21; 99.
Offending

In previous evidence, the Applicant contextualised frequent arguments with his ex-wife as resulting from financial hardship and her purported decision to terminate a pregnancy without consulting him.[77] He said growing tensions towards the end of their relationship evolved into ‘physical arguments’.[78] He claimed to be naïve about relationships, ‘did not know about the laws of the land’ and did not previously understand what family violence was. The Applicant said he blames his ex-wife for his imprisonment, in part because she gave misleading evidence to police. When asked to explain, he said she omitted to tell police about his love and care for her. During re-examination he claimed not to hold any grievances against her, is unaware of her location, and does not intend contacting her.
[77] Ibid 933 [20]-[45]; 935 [15].
[78] Ibid 936 [5].
The Applicant stated on several occasions he fully accepts his guilt and agreed his ex-wife was truthful about his offending. In other evidence, he cavilled with some of her claims, including that he was armed with a ‘big knife’ upon arrival at her home on 27 January 2014, which he used this to cut through a flyscreen to enter her home. The Tribunal notes his ex-wife’s evidence about this was accepted by the Court.[79] On another occasion the Applicant claimed his ex-wife threatened to send him to prison, but could not recall when the threat was made.
[79] Ibid 37; 40.
The Applicant’s evidence about the initial family violence has changed over time. He stated at the previous hearing he could not recall if he had an argument with his ex-wife on 7 November 2013, was ‘not sure’ if he was violent against her, and did not fully understand the ramifications of the PIIO or that it had to be obeyed.[80] This was despite his evidence at the previous hearing that an interpreter was provided when police issued him the PIIO.[81] At the present hearing, however, the Applicant claimed the absence of an interpreter contributed to his inability to understand the PIIO and its seriousness. When asked to comment on this inconsistency, the Applicant eventually agreed an interpreter was provided, the PIIO was explained to him, he understood it had to be obeyed, and he was alert to the seriousness of his situation. The Applicant claimed, however, that when attending court for the initial family violence he did not understand his visa status could be affected by criminal findings. He also stated on several occasions that he did not understand what family violence was until he attended a domestic violence course in 2018.
[80] Ibid 938 [34]; 939 [21]-[32].
[81] Ibid 954.
In relation to the more serious violence he committed on 27 January 2014, the Applicant initially claimed at the first hearing he did not threaten his ex-wife but then agreed he did so when the Court’s findings were put to him.[82] When asked if he tried to stop his ex-wife from proceeding with an earlier complaint to police, the following exchange occurred:
[82] Ibid 943 [35]-[42].
MS BUTLER: Did you go to [victim’s] house to stop her from reporting you to the police in relation to an earlier matter?
INTERPRETER: No, I'm not sure.
MS BUTLER: Do you not remember why you went to her house that day?
INTERPRETER: Unfortunately I cannot recall because it was a while ago, a few years ago. I accept I'm guilty and I apologise, and I'm sorry for what happened.
MS BUTLER: In the sentencing remarks, the judge suggested that you seemed to be trying to silence your wife by threatening her.
INTERPRETER: No.
MS BUTLER: Is that not correct?
INTERPRETER: I was not attempting – not aiming to do that.
MS BUTLER: How do you think your offending on that day impacted your wife?
INTERPRETER: What type of impact you mean? What kind?
MS BUTLER: You were convicted of threatening your wife and assaulting your wife by putting a rope around her neck. What impact do you think that had on her?
INTERPRETER: She got upset. I got upset as well, and I'm very sorry for what happened and what I did.
MS BUTLER: Do you think she was very scared?
INTERPRETER: I'm not sure, I – I don't remember if she got scared.
MS BUTLER: Do you think she was worried that you might hurt her in the future?
INTERPRETER: No, I will never do it again.
MS BUTLER: My question was, do you think at the time, following those events, your wife was worried about you doing that again?
INTERPRETER: No, I'm not sure, no.
MS BUTLER: Do you think your behaviour was serious?
INTERPRETER: Yes, my behaviour was a mistake, and I did it and I apologise, and I promise to not do it again in the future.
MS BUTLER: You have just said then that your behaviour was a mistake, but do you think your behaviour was serious?
INTERPRETER: I already accepted my behaviour and what I did it, and I don't make it again.
MS BUTLER: Can you describe to the tribunal what your mistake was?
INTERPRETER: My mistake was I went to her home, and she – maybe she was scared of me, and this was the mistake I made.
…
MS BUTLER: Did you understand that you were not supposed to be making contact with her?
INTERPRETER: Yes.
MS BUTLER: Why did you go to her house anyway?
INTERPRETER: I did not fully understanding of the law. Unfortunately I did not take the bail and intervention order very seriously.
MS BUTLER: Do you think domestic violence is a bad thing?
INTERPRETER: Yes.
MS BUTLER: Why is it a bad thing?
INTERPRETER: In the past, I did not – I didn't know about domestic violence and its impact. But after having the courses, the domestic violence courses, I have more knowledge and skill of how the matter.
At the present hearing the Applicant agreed his offending was very serious but claimed the purpose of confronting his ex-wife at her parent’s home in November 2013, and then at her home in January 2014, was to express his love and convince her to resume their relationship. He said it was not his intention to hurt her but only to ‘scare and frighten her so she’d return to a married life’. He later claimed in oral evidence that she messaged him to advise she was pregnant and wanted to meet him for a discussion. The Applicant said her sister argued with him on arrival and refused to let him into the home, which caused him to enter through the window. When asked why he did not previously convey this new narrative to police, the court, and at the first hearing of this matter, the Applicant said he was ‘too scared to tell police and the court’. When put directly to the Applicant that his ex-wife did not send him any such message, he insisted she called him on a ‘private number’.
The Applicant gave inconsistent evidence about his offending on 27 January 2014. During cross-examination he agreed his ex-wife told him to ‘go away’ after he knocked on the window.[83] When challenged this was because she never invited him to come and speak with her, the Applicant said he ‘could not exactly remember’. The Applicant initially agreed he had a knife in his hand while standing outside the window. When asked if used the knife to cut open the flyscreen and enter the house, he claimed not to have a knife but tore the screen with his fingers, and only obtained a knife after entering the home.
[83] Ibid 649.
When asked about the repeat nature of his family violence, the Applicant responded: ‘Yes, because I didn’t know how serious it was’. He agreed, however, that his offending became more serious after the initial family violence in November 2013, which caused his ex-wife to suffer depression ‘for a long time’. He also accepted his ex-wife’s sister was adversely affected by his behaviour.
Rehabilitation
The Applicant reflected upon his time in prison as ‘very hard’, with adverse effects on his mental health. He intends seeking psychological help if released to address anxiety and depression. He referred to his expectations about this treatment as ‘a form of brainwashing’ to free him from bad memories in prison. He said what happened in prison would stay in prison and he would be a ‘new person’ upon release.
The Applicant said he completed a domestic violence course in 2018, which was conducted three days each week over a three-month period. He recalled there were nine or ten participants, and the course was in English. He had trouble understanding aspects of the course and said the instructor did not have time to address everyone’s questions. The Applicant said this course nevertheless ‘opened [his] eyes’ and taught him for the first time ‘what domestic violence is’. When asked to elaborate, he explained it is ‘aggression and violence between a husband and wife’. He learned it is not acceptable to ‘bash or control a woman,’ and he must treat them with dignity.
The Applicant said he is not contemplating a new relationship but if this occurs, he is now better placed to avoid past ‘mistakes’. By ‘mistakes’, he meant all of his past unacceptable behaviour. He said some members of his family, who are married with children, could ‘transfer their knowledge and…[give him]…hints’ about relationships. He did not seek their guidance in the past, but now accepts their perspectives would be helpful. When asked what he would do differently in another relationship, the Applicant said he will try and manage his anger better and be ‘kind and respectful’.
Other conduct
The Applicant agreed that approximately six days after the issue of a PIIO, he caused an incident at the home of his ex-wife’s parents, during which he intentionally cut his arm with a piece of glass purportedly found at the scene. The Applicant said he received hospital treatment for this injury and agreed that he falsely claimed to police his ex-wife’s brothers forced his arms behind his back and cut his forearms with a razor blade or knife.[84] When told by police that fresh blood was discovered at the scene, he agreed that he also falsely claimed his ex-wife’s brothers placed samples of his blood at the scene to incriminate him.
[84] Ibid 296.
In relation to the jury trial for his January 2014 offending, the Applicant said he asked one of his siblings and a friend to give false alibi evidence to help him evade his crimes. He recalled that his sibling testified he was working with a friend at the time of the attack on his ex-wife and that she saw his car parked at this friend’s business. The Applicant agreed those who provided false alibi evidence could not be considered good influences.
The Applicant claimed that the domestic violence course he undertook in 2018 enabled him to better control his anger and ‘walk away’ from arguments. When asked by Mr Simmons if situations arose in prison where he was able to apply this de-escalation strategy, the Applicant erroneously claimed he had ‘no confrontations in jail – there hasn’t been an occasion in jail to be violent…I haven’t really had any opportunity to put this in place’. This repeated a claim in his Statutory Declaration that he had ‘never been in any kind of trouble’ since being imprisoned.[85] When challenged about incident reports referring to his involvement in fights and other misconduct in prison, the Applicant claimed that on every occasion someone else instigated these fights and there was ‘not enough time’ to walk away. When challenged about multiple reports alleging persistent misconduct, he responded: ‘I did have trouble, but I didn’t initiate it’. He claimed no one was available in prison to ‘guide and advise’ him about how to behave and interpreters were not provided to better explain things. The Applicant claimed he ‘tried to be a good prisoner’ and was never shown CCTV footage relating to misconduct or the contents of incident reports. He claimed to have tried to explain to prison officers that others were responsible for these incidents, but said they had ‘difficulty understanding’. The Applicant said he was unaware any bad behaviour while imprisoned could affect his visa prospects. When challenged, he insisted that he did not know conduct such as threatening to punch a prison officer could affect his visa status.
[85] Ibid 65 [13].
Mr Cooper took the Applicant through multiple reports in evidence alleging he was found with contraband on several occasions, engaged in fights with other prisoners, and was abusive and aggressive against prison staff.[86] The Applicant agreed there were occasions when he was subjected to internal relocation or loss of privileges following fights or when officers thought he insulted them, which he estimated happened ‘every few months’. He also agreed that he was dismissed from work roles in the prison ‘once or twice’, recalling that on one occasion this was because food went missing from the kitchen, which he was accused of stealing. Aspects of his evidence about the prison incident reports was inconsistent and he was frequently unable to recall events that gave rise to them. He claimed many of the incidents resulted from the reporting officer’s mistaken perceptions and were not his fault. Some of his evidence about these incident reports included:
[86] Exhibit R3, 69-78; 112-113-114; 116-117; 120-124; 126-128131-132; 181.
(a)Every fight the Applicant was involved in was initiated by someone else. He said it was customary for guards to punish both participants irrespective of role. When referred to several reports stating the Applicant was the perpetrator of some incidents and a victim in others, the Applicant insisted officers relied on CCTV footage and did not distinguish between aggressors and victims. He thought he may have been listed as a perpetrator on occasions when he fought back;
(b)In relation to an incident report stating he was observed on CCTV throwing a punch at another prisoner, the Applicant said he and the other person were only ‘mucking around’, ‘joking’ or ‘game-playing’;
(c)The Applicant said he was not abusive or threatening towards prison staff and at one point claimed he could not recall if he ever abused a prison officer. He insisted that he avoided arguing and obeyed instructions given. He agreed in relation to one incident, however, that he was restrained against a wall and handcuffed, because the manager present ordered it and not because of his non-compliance. He claimed that ‘in the prison environment they can do anything to you’. When asked about another report that he abused a female officer, the Applicant said he was only complaining about missing property, which he wanted returned. When pressed about several incident reports by different authors who stated he swore at prison officers, the Applicant said his ‘inadequacies’ in English may have incorrectly led officers to think he was being disrespectful, but this was not the case. This included one occasion when other prisoners swore at prison officers, but the Applicant claimed prisoner officers mistakenly thought he was abusing them as well. On another occasion he agreed that he told a prison officer ‘you can’t talk to me like that’, because the prison officer ‘raised his voice and became angry’. In relation to an incident on 11 July 2021, where he was reportedly abusive in relation to not being permitted to make a telephone call,[87] the Applicant initially stated he was ‘sure’ he did not abuse or insult the officer. During re-examination he claimed to have become ‘upset and angry’ after being denied use of videoconferencing facilities to communicate with his father in hospital. When asked about this inconsistency, the Applicant responded: ‘Yes I have had arguments with them – on one occasion regarding my father’. He explained that he was frustrated because multiple requests to be transferred closer to his family were ignored or rejected;
(d)When asked about an incident report stating he intended to attack one of the prison officers, the Applicant said he and this prison officer regularly engaged in banter and he was only joking. He opined that another officer nearby may have convinced the officer to report it. The Applicant said he would not have made the threat if he thought the prison officer to whom it was directed would take it seriously;
(e)When asked by Mr Simmons during re-examination if he ever failed a drug test, the Applicant responded: ‘I was always found clean – they never found a substance’. When challenged that a record in evidence disclosed one positive test for opiates,[88] the Applicant agreed he returned a positive drug test because he was taking a painkiller for a sore shoulder. When asked why he stated he never returned a positive drug test, the Applicant said he distinguished between legal and illegal drugs, and also that the test was undertaken while he was on home detention bail and not in prison;
(f)The Applicant agreed he took cake from the prison kitchen without permission on one occasion but denied other reports referring to him receiving several warnings for the same conduct. He claimed he could not eat certain foods because of his religion, including cake, because it contained baking powder and another ingredient made with a pork product. When asked why he took cake he could not eat, the Applicant said it was for ‘somebody else’. He knew it was wrong but wanted to help this other person. He also claimed to have engaged in a fight with a co-worker in the prison kitchen, after the Applicant wanted to give leftover food to others, but the other prisoner wanted to keep it for himself;
(g)The Applicant agreed cigarettes were found in his possession after a search, including 13 wrapped in toilet paper hidden in his sock. The Applicant said his only mistake was taking the hidden cigarettes into a yard without permission, but claimed he did so to prevent other prisoners asking him for cigarettes;
(h)The Applicant agreed he used a stringline and empty tin to get a nicotine tablet from an adjoining cell, but only to help a cellmate experiencing smoking withdrawal;
(i)The Applicant said a urine sample and stringline found in his cell were not his and must have been left by the prisoner previously occupying the cell;
(j)The Applicant claimed a nurse failed to give him correct paperwork for medication on one occasion, which was then discovered and reported by prison officers; and
(k)The Applicant flushed a piece of gladwrap down the toilet that he inadvertently removed from the kitchen, claiming it was so his visit rights were not cancelled.
[87] Ibid 114.
[88] Ibid 203; Exhibit R3, 66 (9 November 2016).
Protective factors
The Applicant stated at the first hearing he will live with his parents if released, find work, attempt to further his education, and communicate better with his family members.[89] He will also attend the mosque, which he claimed to have previously attended every second day. He intends asking others at the mosque for guidance and support if required.
[89] Exhibit R1, 951.
In terms of employment, the Applicant said his brother will employ him in his tiling business. He can also apply for jobs requiring truck and forklift licences. When asked if he aspired to an immediate return to work, he explained that he would first seek expert assistance for his anxiety, depression, and rehabilitation needs. He did not know how long this might take. His priority after returning to work is to repay approximately $85,000 in debt. This relates to a bank loan for a car and to repay family members who funded his legal fees and prison expenses. He claimed to be a good saver and could repay these loans within a year. When challenged, he said another alternative was to repay creditors more slowly at $300 or $400 monthly. The Applicant said he also wanted to undertake further adult education in English.
Parole and detention
The Applicant has been eligible to apply for parole since 2019 but has not done so. He said the ‘whole idea of staying in jail was to resist going to a detention centre’, which would cause him ‘immense mental and psychological stress’ and worsen his parents’ health. He said this was because his detention was likely to be in an area remote from his family. The Applicant said if the visa cancellation decision is not revoked and he is taken into detention, he feared the news may cause his parent’s death.
Evidence of Ms F

Ms F gave oral evidence with the assistance of an interpreter in the Farsi language. She adopted her statement dated 12 January 2022 as true and correct. The Tribunal has also considered her earlier statements in evidence and oral evidence during the first hearing.[90]
[90] Ibid 868-873; 956-971.
Ms F stated she has a very close relationship with the Applicant, with whom she talks frequently on the telephone. She said they were not previously close, but he now tells her ‘everything in his private life – all his issues’. He discussed incidents in prison with her, including an argument with officers after they refused to let him visit their sick father. When asked if he told her about prison fights, Ms F said he had not: ‘He told me about arguments, but I don’t know much about the details’. When asked if she expected him to have told her about getting into physical fights, Ms F responded: ‘Yes, I’d prefer if he told me’. She thought the Applicant did not disclose fights because he was cognisant of the ‘immense pressure’ she is under. She believes he will be more open in future and his presence in the family home will enable her to ‘escape from this trap’. The Tribunal inferred this to mean shouldering the burden of care for their parents.
Ms F does not work and receives Centrelink benefits. She said her parents also do not work and rely on Government payments because of comorbidities including heart conditions.[91] Ms F claimed her parents need ‘24-hour assistance’ and the burden falls on her in the Applicant’s absence, which affects her mental health. She helps with bathing, cooking, clothing, medications, washing / ironing, appointments, and other tasks. When asked if any taxpayer-funded assistance is provided for her parent’s needs, she responded: ‘No’. Later in her evidence, however, she referred to receiving Carer Payment for her mother, and stated that her father receives some assistance in the home after an Aged Care Assessment. Another sister, Ms M, helps with cooking and medical appointments. Ms F stated her mother’s application for the National Disability Insurance Scheme was rejected. Ms F was taken to medical records for her father,[92] which reflect his ability to undertake self-care and improved mobility after his heart surgery in July 2021. She agreed her father’s condition has improved, but claimed he still requires considerable support.
[91] Ibid 74-76; 104-105.
[92] Exhibit A16.
Ms F said her other siblings, three of whom live nearby, are too busy with their own lives to support their parents. When asked whether any provided financial support, Ms F replied: ‘No’. When referred to the Applicant’s evidence that their brother, Mr Q, provides financial support for rent and utilities, Ms F changed her evidence and agreed this was the case. When asked about the inconsistency, Ms F said she assumed the question was about ‘cash’ payments.
Ms F said after reviewing the Applicant’s workbook from a domestic violence course in 2018, she realised how little he knew about relationships. She said his conduct severely impacted his ex-wife, but the Applicant told her he ‘learned a lot’ from the course, and now realises how frightened his ex-wife and her sister must have felt.
Ms F said her previous studies in social work and nursing would assist her in supporting the Applicant if released. When asked about those studies, she referred to commencing an undergraduate course but discontinued it after undertaking four out of 32 units. She passed three units and failed one before ending her enrolment. Ms F has no formal qualifications or other recognised skills in social work, counselling, or nursing.
Ms F was asked about her false alibi evidence at the Applicant’s trial. She claimed not to remember all the details but insisted she ‘wasn’t trying to give false evidence’. She accepted, however, that her evidence was to the effect that the Applicant was at a different location to his ex-wife’s home on 27 January 2014 and therefore could not have committed the crime. When asked where she told the Court the Applicant was at this time, Ms F claimed not to remember. When asked if she accepted her evidence was wrong, Ms F stated: ‘What I told the Court was true and honest. That was the information I had at the time. My brother told me he was at a particular place and time’. When put directly to Ms F that she deliberately misled the Court by stating he was somewhere else at the time of his offending, she replied: ‘I accept that’. She agreed it was wrong to give this evidence, and that she wanted to help the Applicant. When asked if she was one of the people the Applicant asked to lie in Court, Ms F responded: ‘I can’t really remember’.
Ms F agreed during re-examination that the Applicant deceived her by stating he was somewhere else at the time of his offending. She accepted previously misjudging his character but considered he is now a changed person, which resulted from her ‘teaching’ and changes in his attitude after participating in the domestic violence course in 2018.
Evidence of Ms M
Ms M was assisted by an interpreter in the Farsi language. She adopted her statement dated 25 January 2022 as true and correct. She is married with two minor children and does not work. Ms M said the Applicant is very close to her two minor children.
When asked who supports her family financially, Ms M responded: ‘Centrelink’. She said her husband only works two days a week because of a back problem. She also needs his help at home because she ‘cannot cope looking after the children’ by herself.
Ms M said she steps in to help look after her parents when Ms F has other commitments. She said the Applicant was principal carer of their parents before he went to prison in 2017 and would be of great assistance if he returned to this role. Ms M said her husband objects to her helping care for her parents, which limits the assistance she can provide.
Ms M described her relationship with the Applicant as very close and she communicates with him by telephone up to three times each week. They talk about his situation in prison, and she tries to ‘make him feel like he can cope’.
Evidence of other relatives and friends
The Tribunal has considered previous supportive statements from relatives, friends, and employers of the Applicant in the context of his 2017 court appearance and subsequent applications.[93] Some of this documentary information is now quite dated and the transcript discloses none of these other witnesses previously gave oral evidence.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
[93] Ibid 81-84; 99-103; 106; 874-878.
The nature and seriousness of the conduct
There is no dispute between the parties that the Applicant’s offending is very serious.[94] That is abundantly clear from Judge Davison’s sentencing remarks following a jury trial.[95]
[94] ASFIC 6 [14]; RSFIC, 10 [54].
[95] Exhibit R1, 40-42.
The Tribunal does not accept that assessment of the Applicant’s ‘conduct must be limited to those charges for which he has been convicted’.[96] Clause 8.1.1(1) of the Direction enables consideration of both criminal offending and ‘other conduct to date.’ That encompasses conduct for which there is evidence supporting a factual finding, even though no conviction resulted.[97] The Tribunal also does not accept it is improper to have regard for ‘material released by SAPOL or the DCS,’[98] or that these records ‘should be given no weight’.[99] The Tribunal is not bound by the rules of evidence[100] and summonsed records are routinely lodged in mandatory cancellation cases. It is not a necessary precondition for weight to be placed on these records that their authors are available for cross-examination.[101] The probative value of this material is routinely tested during questioning, and it is for the Tribunal to assess and weigh such material.
[96] Ibid 782 [18]; [25].
[97] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516, 64.
[98] South Australian Police; Department of Corrective Services.
[99] Exhibit R1, 783 [20].
[100] AAT Act, s 33(1)(c).
[101] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 [53], [69] (Anderson J).
The Tribunal does not discern any motive for the authors of police or prison reports to have produced other than an accurate contemporaneous record of what they believe occurred or arose from their investigations. That view is reinforced by the Applicant eventually being found guilty of violent conduct disclosed in police reports, despite falsely claiming innocence, lying to police,[102] giving false alibi evidence in court,[103] and appealing his findings of guilt and sentence despite knowing he was guilty. His appeals against these convictions and sentences were dismissed by the Supreme Court of South Australia.[104]
[102] Exhibit R1, 784 [27]; 787 [35].
[103] Ibid 37; 787 [35].
[104] Ibid 326-327.
It is nevertheless acknowledged that police reports or other records that did not lead to charges must be treated with caution. Kenny J has noted that ‘police service files’ must be treated cautiously, and due regard given to ‘its cogency and reliability’.[105] Anastassiou J has expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[106] In the present matter, the Tribunal found aspects of the police and correctional service reports more persuasive than the Applicant’s routinely inconsistent assertions. Out of an abundance of caution, however, the Tribunal has only placed weight on police and corrections records that either resulted in a conviction, or where the Applicant conceded certain conduct, or that are corroborated by other probative evidence. The prejudicial impact of doing otherwise is too great.
[105] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[106] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
The Applicant’s repeat offending and breach of conditional liberty arrangements reflects a disregard for important institutions such as the courts. He committed violence against his ex-wife and her sister. This followed an earlier assault against his ex-wife in the context of multiple police attendances,[107] another violent incident outside her parents’ home, and breach of a PIIO, bail agreement, and good behaviour bond. Crimes of a violent nature against women are viewed very seriously.[108] The shock and fear experienced by the two female victims during and after the Applicant’s violence is evident from the Court’s sentencing remarks.[109] An aggravating feature of the Applicant’s conduct was his attempt to coerce his ex-partner from proceeding with an earlier complaint to police. Judge Davison concluded the Applicant was ‘controlling and violent’. Her Honour noted he was not a first-time offender and at the time of sentencing, was yet to show any remorse or acknowledge his culpability.[110] Her Honour said this did not inspire confidence in his rehabilitative prospects.[111] It is noteworthy the Applicant’s intentionally false claims of innocence led to an unnecessary jury trial, where he chose not to give evidence, while his victims had to publicly recount their traumatic experiences. Certain of the Applicant’s witnesses, on the Applicant’s instructions, provided false testimony. He also appealed the court’s first instance decision in relation to findings of guilt and sentence, again despite knowing he was guilty. This conduct caused unnecessary expense and could only have added to the emotional distress of his victims.
[107] Exhibit R1, 793-4 [5].
[108] The Direction, cl 8.1.1(1)(a).
[109] Ibid 37-38.
[110] Ibid 40.
[111] Ibid 40-42.
It is acknowledged the Applicant’s convictions in 2017 were his first custodial sentences, but the imposition of a head sentence of five years’ imprisonment reflects the objective seriousness of his crimes: cl 8.1.1(1)(c) of the Direction. That is so irrespective of whether the sentences were below the maximums available.[112] There is a clear trend of increasing seriousness in the Applicant’s conduct after his initial family violence. The Tribunal carefully considered the Applicant’s submission that his conduct should be viewed as part of a single chain of events leading to the main offending, and in that sense not demonstrating a trend of increasing seriousness, but we do not find that persuasive. While the incidents transpired over a relatively confined timeframe, our view is they reveal a trend of increasing seriousness culminating in the most serious offence for which the Applicant was convicted.
[112] Ibid 50.
The Tribunal has considered a report from the South Australian Department of Correctional Services regarding work roles allocated to the Applicant while imprisoned.[113] It is submitted the Applicant has a ‘relatively clean record while in prison’, because custodial settings are ‘full of conflict’ that is difficult to avoid, and his ability to do so on most occasions ‘demonstrates…his ability to deal with conflict has improved’.[114] The Respondent submits the Tribunal should have regard for persistent incidents of misconduct.[115]
[113] Ibid 204.
[114] Exhibit R1, 789 [43].
[115] Respondent’s Statement of Facts, Issues, and Contentions (RSFIC) dated 21 January 2022, 4 [13].
The Applicant claimed in his evidence the threatening remarks he made to a prison officer were ‘meant as jokes’ and that he was innocent of stealing food because his ‘religious beliefs as a Muslim’ precluded him from eating the food purportedly stolen.[116] In relation to fights with others in prison, the Applicant claimed:
The reports on fighting either don’t say, or don’t accurately say who started it. The guards don’t really care who starts it because they just punish everyone who was involved. You can try and plead your case to the manager but if its just a low level incident they have no interest in changing anything. It is very hard to avoid conflict while you are in a high security prison surrounded by people who have their own stresses and problems.
I continue to be victim of mistaken identity. There is another [person with same first name] who has been in prison in South Australia for many years. He is also a Hazara from Afghanistan. This other [prisoner with same first name] is a bikie which means he gets targeted for attacks by other groups. Unfortunately, those people will often get me mixed up with him.[117]
[116] Exhibit A1, 10-11 [32]-[33].
[117] Ibid 11, [34]-[35].
Other records in evidence refer to the Applicant’s involvement in violent incidents, damaging a cell, and possessing prohibited items.[118] The Applicant’s written evidence responding to these incidents[119] and oral evidence during the hearing have been considered.
[118] Exhibit R1, 111-113; 188-193.
[119] Ibid 162.
The frequency of the Corrections reports, by multiple different authors, and repeat nature of issues raised, is not alleviated by the Applicant’s explanations. While no findings are made about specific incidents, the Tribunal is satisfied from the persistent themes raised by these incident reports that the Applicant has not been consistently compliant or well behaved in custody.
The Tribunal finds the totality of the Applicant’s offending and other conduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The victim statements referred to by Judge Davison during sentencing amply reflect the harm caused by the Applicant’s conduct:
I have received victim impact statements from RB and RZ. RB 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 RB 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.[120]
[120] Ibid 37-38.
The Applicant was noted by a magistrate after the initial family violence in 2013 to have been ‘contrite, remorseful and apologetic’.[121] He nevertheless committed more serious violence against his ex-partner and her sister a few months later, which he falsely denied and presented untrue alibi evidence about. During sentencing, Her Honour Judge Davison reflected upon the Applicant’s absence of contrition, self-focus, and lack of insight:
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.
…
Against these issues I must balance the fact that 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 the circumstances I cannot find good reason to suspend the term of imprisonment I have imposed.[122]
[121] Ibid 769; 780 [10.a.].
[122] Ibid 41-42.
The Applicant claimed that his previous lack of acceptance of his offending arose because of fear to admit wrongdoing because of adverse consequences, not knowing how to address false claims by his ex-wife to police, and traumatic experiences in Iran with ‘abusive police’[123]. It was further submitted that any assessment of these explanations must have regard for psychologist Dr White’s assessment about the Applicant’s intellectual capacity.[124] It is noteworthy, however, that the sentencing remarks do not refer to any intellectual or cognitive deficit suffered by the Applicant, or impairment with problem-solving, as contextually relevant to his offending. Moreover, the Applicant’s brother refers to the Applicant in the following terms in a statement dated 29 May 2018:
He has always led a very positive lifestyle, licensing in Forklift and truck driver. He earned a good salary and cared not only for my parents but also all of his other siblings…He has a magnificent talent and skills in many position such as Mechanic, Driving, Tiling, designing and problem solver. Through our close relationship with him most of the time I asked him for help and he always come up with such unexpected ideas that make my way easy in the most difficult situation.[125]
[123] Ibid 786 [31].
[124] Ibid 786 [32]-[33]; 174 [3.2.2].
[125] Ibid 99.
A close friend and business owner stated on 23 May 2018 that the Applicant helped run his travel agency and assisted customers without English skills to fill in forms for new passports.
The Tribunal has considered a Home Detention Compliance Report dated January 2017, relating to the Applicant’s conditional liberty pending trial.[126] He was breached on one occasion for attending an unapproved location, which was accepted as arising from a misunderstanding. The Tribunal has also considered a Domestic Violence Risk Assessment report completed by police in December 2013 after the Applicant’s domestic violence against his ex-wife, which assessed him as ‘High’ risk.[127] This prescient assessment was followed approximately two months later by the Applicant committing very serious violence against his ex-partner and her sister.
[126] Ibid 70-71.
[127] Ibid 612-613.
There is reference to the Applicant being rated as ‘PRIORITY 1’ in prison for attendance on a criminogenic program in 2017, but upon testing of his English and other basic literacy and numeracy skills, was considered not to have the skills to undertake the program.[128] Dr White also noted the Applicant’s claims that he ‘attempted to participate in the education program within the prison system, but his abilities were very poor and his capacity to engage was minimal’.[129] The Applicant stated he has nevertheless addressed the court’s concerns about rehabilitation by participating in a family violence course in 2018 and reflecting on his past behaviour. The Tribunal has considered a workbook he provided from the 2018 course attendance, which the Applicant claimed changed his life.[130] His evidence about the transformational impact of the domestic violence course, however, is somewhat tempered by his oral evidence about difficulties understanding the subject matter. The Tribunal acknowledges the Applicant’s aspirations to pursue a ‘long term treatment plan’ in the form of counselling and rehabilitation if released.[131] To progress this he intends consulting with his general practitioner and a psychologist once he regains access to Medicare and other government assistance.
[128] Ibid 113; 205-209.
[129] Ibid 177.
[130] Exhibit A1, 5 [20].
[131] Ibid [25]-[27]; 948 [23]-[31]; 949 [7].

As a Shi’a Hazara who was born in Iran, returning to Afghanistan from a Western country, and without any family or other source of support, the Applicant is at significant risk of harm. He has a well-founded fear of persecution and discrimination on these grounds and from the unstable general security situation. Given the prevailing humanitarian crisis, he would struggle to access medical treatment for any existing or emergent conditions, which may constitute a basis for complementary protection: s 36(2)(aa) of the Act.[202] The Tribunal does not accept the Applicant’s claims, however, about being targeted by people in Afghanistan who previously harmed his father. On his own evidence he has never been to Afghanistan, his family left there prior to his birth, and it remains unclear how his personal circumstances might be linked to his father’s past experiences in Afghanistan.
[202] See definition of ‘cruel or inhuman treatment or punishment’ in s 5 of the Act, and Riley’s J discussion of Ground 1 in CKX16 v Minister for Immigration & Anor (No 2) [2018] FCCA 2894.
Pursuant to the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth), which amended s 197C of the Act, it is no longer required that the Applicant be removed to Afghanistan under s 198 of the Act, irrespective of the existence of non-refoulement obligations. The Applicant has applied for a Protection Visa and he would not be removed until his protection claims are finally determined.[203] Moreover, the Respondent is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (“Direction 75”). Direction 75 requires that when considering an application for a Protection Visa, an assessment must first be made about whether refugee and complementary protection criteria are met before considering ineligibility criteria. It is accepted, however, that only a successful Protection Visa application can avoid the prospect of removal.[204]
[203] Section 198(5) of the Act; DOB18 v Minister for Home Affairs [2018] FCA 1523, [35] (Griffiths J).
[204] DQM18 v Minister for Home Affairs (2020) 278 FCR 529, [107]; [109] (DQM18) (Bromberg and Mortimer JJ).
In terms of the primary legal consequence of an adverse decision in this matter, the mandatory cancellation of the Applicant’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of a non-revocation decision, he is liable to be detained under s 189 of the Act after being released from prison. As discussed earlier, removal from Australia is not currently an immediate legal consequence of an adverse decision given his Protection Visa is yet to be determined and noting the operation of the amended s 197C(3) of the Act. It is also permissible to continue a person’s detention while appeal rights are exercised, third-country return option explored, or consideration given to the exercise of a non-compellable Ministerial discretion.[205] There is no evidence, however, that an exercise of Ministerial discretion or third-country option is currently in prospect.
[205] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
If taken into detention, the Applicant appears unable to elect voluntary return, because of the risks in Afghanistan and difficulty in facilitating this with the current Afghan Government. In relation to his Protection Visa application, it may be successful, unsuccessful, or that a protection finding is made but the Applicant is denied the visa on character grounds. Other factors would also impact the time he spends in detention. It is not known, for example, whether he will exercise review or appeal rights in the event of an adverse decision, or what the future prospect of removal to a third country might be. These uncertainties raise the prospect at least the Applicant will remain in immigration detention with no fixed endpoint, which can be characterised as prolonged or indefinite detention. Notwithstanding the absence of any expert evidence on this issue, the Tribunal accepts this can result in a significant deterioration of the Applicant’s mental health.
Were the Applicant to be refouled contrary to a finding that non-refoulement obligations are owed to him, negative consequences arise not only in respect of the risks confronting the Applicant, but also for Australia’s international standing and reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law.[206] As for international reputational effects arising from prolonged or indefinite detention, or attempts to resettle the Applicant in a third country, the Applicant’s submissions about this are overly speculative given they rely on events yet to occur, such as the Applicant being taken into detention, resolution of his Protection Visa, any further exercise of appeal rights, and future consideration of other permissible reasons to end detention. It is simply not possible to say how these often-irresoluble branches and sequels may play out or how long they might take. The Tribunal is not required to engage in speculation or fact-finding about future events,[207] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection (Ali):[208]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
[206] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK 19 [2021] FCAFC 53.
[207] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[208] [2018] FCA 650.
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
Given the facts of this case, the risk of any breach by Australia of its international law obligations, whether that relates to refoulement or detention, or damage to Australia’s reputation brought about by actions aimed at procuring third-country settlement, does not constitute a reason for revocation in the Tribunal’s exercise of the discretionary power conferred by s 501CA(4) of the Act.
Irrespective of options that might emerge, non-revocation represents a significant, adverse outcome for the Applicant. It gives rise to the prospect of indeterminate deprivation of his personal liberty, with concomitant impacts on his mental health and significant distress for his family members and others who support him.
To the extent that the Applicant’s submissions suggest a non-revocation decision constitutes a continuation of his criminal punishment, this is rejected. That is because the ‘power to remove or deport aliens from a country is executive in nature and…non-punitive.’[209] In O’Keefe v Calwell,[210] Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence. More recently in Falzon at [96], Nettle J held that, consistent with previous High Court reasoning,[211] immigration detention is valid for the purpose of removing a non-citizen from Australia, is not punitive, and involves no exercise of judicial power or intention to impose additional punishment.[212]
[209] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J).
[210] (1949) 77 CLR 261, 278.
[211] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33]
[212] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
The Tribunal finds the Applicant is a person in respect of whom Australia owes non-refoulement obligations. This consideration carries very substantial weight in favour of revocation.
Extent of impediments if removed
The Applicant refers to ‘issues with cholesterol’, mental health symptoms, and a faster than normal heartbeat, which he says requires ‘checks’.[213] There is a dearth of medical evidence for these claims. The Applicant does not believe he could access treatment for these conditions in Afghanistan.
[213] Exhibit R1, 68 [57-58].
Because he was born in Iran and lived in Australia for the last decade, the Applicant stated he would be confronted by considerable barriers if returned to Afghanistan. These include language, cultural, and other impediments. The Tribunal accepts that someone with the Applicant’s profile, who has spent a decade in Australia and is involuntarily returned from a western country, would likely attract adverse official interest. He would likely find it difficult to establish himself and provide for his daily needs.[214] Absent any support from family or friends in Afghanistan, or savings to draw on, his vulnerability within Afghan society would only be accentuated. Afghanistan is a very poor country characterised by persistent violence and political instability. The circumstances of its citizens have only worsened because of the COVID-19 Pandemic and Taliban takeover. Unemployment is high and rising.[215] Economic prospects for returnees are dire.[216] Confronted by the realities of this humanitarian crisis, the Applicant would find it hard to find work, sustain himself, and access basic services. Separated from his family in Australia and without any practical or emotional support, he would be exposed to poverty, food insecurity, and violence. His mental health is likely to deteriorate, for which it is doubtful he could access necessary support.
[214] 'Taliban would take back Europe's Afghan deportees to face courts, says spokesman', Reuters (online, 31 August 2021).
[215] International Labour Organisation, ‘Unemployment, total (% of total labor force) (modeled ILO estimate) - Afghanistan | Data (worldbank.org)’, World Bank (Web Page, 15 June 2021); ‘afghanistan: Rising unemployment in Afghanistan, people forced to sell goods on streets - The Economic Times (indiatimes.com)’ The Economic Times (online, 21 September 2021)
[216] ‘UNHCR Regional Bureau for Asia and Pacific (RBAP): Flash External Update: Afghanistan Situation #12, As of 15 December 2021 (two-week period) - Afghanistan | ReliefWeb’ ReliefWeb (Web Page, 22 December 2021) ; Zabiullah Jhanmal, '8% Drop in Growth Predicted for Afghan Economy: Report', Tolo News (online, 28 July 2020.)
The impediments confronting the Applicant if removed are significant and this consideration weighs very substantially in favour of revocation.
Impact on victims
The Applicant claimed in his documentary evidence that he does not think revocation of his visa cancellation would impact his victim or her family ‘in any way’.[217] The Tribunal considers this perspective uninformed at best. The Tribunal has considered the victim impact statements referred to by the court and the fear and shock experienced by his victims, who said they feared for their lives because the Applicant is a ‘very dangerous man’.[218] The statements on which these claims are based, however, are now over four years old. In the absence of any direct evidence from the victims or their families about the impact of a decision in this matter, the Tribunal finds this consideration carries neutral weight.
[217] Ibid 68 [55].
[218] Exhibit R1, 37-78.
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cl 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests in the event they are not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction and this consideration carries neutral weight.
The strength, nature, and duration of ties to Australia
All the Applicant’s immediate family reside in Australia and no submissions were made that they do not fall within the meaning of cl 9.4.1(1) of the Direction. The Applicant is very close to his family and they have continued to support him during his years in prison.[219] The evidence discloses frequent communication between them by telephone.[220] A recent example of this continuing support is the joint letter signed by the Applicant’s two adult nieces. The Applicant’s parents continue to experience ill health with significant physical and psychological conditions. He particularly refers to the burden of their care falling on Ms F, who struggles to juggle competing imperatives in his absence.[221]
[219] Ibid 94-202; 210-286.
[220] Ibid 949 [29]-[45]; 950.
[221] Exhibit A1, 11 [48].
It is accepted the Applicant played a significant role prior to imprisonment in helping care for his parents. Their health has since deteriorated and includes operative procedures. Care of the Applicant’s parents during the last five years has been undertaken predominantly by Ms F with some support from Ms M and a financial contribution from Mr Q. It is accepted the health of the Applicant’s parents may worsen because of stress arising from his visa circumstances. It is also accepted the Applicant’s siblings and other family members and friends would experience emotional hardship in the event of an adverse decision.
The Applicant’s offending commenced approximately two years after arriving in Australia and he has spent most of his time here either on remand, conditional liberty provisions or imprisoned. Less weight is therefore given to this consideration.[222] He has made a limited positive contribution to the community through vocational study, employment as a truck and forklift driver,[223] paying taxes, volunteering at a friend’s business, and engaging with his ethnic community through sports and other activities. Weight is placed on these positive contributions.[224]
[222] Direction, cl 9.4.1(2)(a)(i).
[223] Exhibit R1, 95.
[224] Direction, cl 9.4.1(2)(a)(ii).
What ties the Applicant has are in Australia. On balance, this consideration weighs very substantially in favour of revocation.
Additional considerations
The Applicant submitted that the cost to the community of the Applicant’s prolonged or indefinite detention is an additional ‘other consideration’ under the non-exhaustive list at cl 9(1) of the Direction. This is rejected.
The cost of a person’s detention is not a consideration the Tribunal is required to address under the Direction. Moreover, the Applicant is still imprisoned and has not been taken into immigration detention. For the reasons previously adduced under International non-refoulement obligations, the Tribunal does not consider it necessary to speculate on the potential costs of something yet to occur.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant’s conduct is very serious. It includes criminal offences, persistently false claims of innocence, contrived alibi evidence, and misconduct while imprisoned. In respect of the latter, the Tribunal expressly does not make findings that any prison conduct was criminal. Rather, the Tribunal has paid close attention to the probative relevance of the prison records.[225]
[225] See FTZK v Minister for Immigration and Border Protection (2014] HCA 26; 88 ALJR 754 at [16] as referred to in QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 at [74].
The Applicant has committed serious family violence against two women, repeat of which has the potential to cause serious harm or the death of a victim. His expressions of remorse are relatively recent and follow a much longer period of denial and victim-blaming. The Tribunal was unpersuaded by his claims that English language deficiencies, lack of legal knowledge, and inability to understand what family violence is or its seriousness, are contextually relevant to his violent conduct.
The Tribunal is unpersuaded that the 2018 domestic violence course resulted in the transformational effects the Applicant now claims. His persistent misconduct while imprisoned reinforces he is not meaningfully rehabilitated and has unmet treatment needs. This includes further counselling and other therapies relevant to anger and violence. The Applicant constitutes an unacceptable risk of reoffending. Given that his offending commenced within approximately two years of arrival in Australia, and his conduct raises serious character concerns, the Australian community would not expect him to hold a visa.
The Applicant continues to enjoy the strong support of some family members and has loving relationships with three minor children. He has not played a parental role, however, and there have been long periods of limited meaningful contact during the last five years. Revocation is nevertheless in these children’s best interests.
Of the other considerations, the Applicant is a person in respect of whom Australia owes non-refoulement obligations. If he were returned to Afghanistan, the impediments confronting him are very significant. He would also be separated from his closest ties in Australia, including his parents who suffer ill health.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community,’ ‘Family violence committed by the non-citizen’, and ‘Expectations of the Australian community,’ considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the written reasons for the decision of Senior Member A.A. Nikolic AM CSC, The Hon. Deputy President D.A. Cowdroy AO QC, and Member M. Kennedy

................[sgd]........................................................
Associate
Dated: 16 February 2022

Date of hearing: 31 January, 1 and 2 February 2022

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Mitchell Simmons

MSM Legal

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Henry Cooper

Australian Government Solicitor